' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No. 762 of 2000 filed by Nazir Ahmad, who was convicted and sentenced by learned Additional Sessions Judge, Jhang vide judgment, dated 25-5-2000 as under:-- Death and to pay compensation to the tune of Rs.50,000 in default six months' S.I. Under section 302-B, P.P.C. And 10 years as also to pay,a fine of Rs.5,000 in default three months' R.I. Under section 449, P.P.C.
Murder Reference No.356,of 2000 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single Judge apart from Criminal Appeal No. 1078 of 2000.
2. In the instant case, the occurrence had taken place at 3 a.m. (mid-night) on 9-8-1997 within the jurisdiction of Mauza Hussain Khan at a distance of 9 kilometers from Police Station Sadar Chiniot while the matter was reported to the Police at 5 A.M. The same morning at Adda Mathroma by Riaz Hussain through written complaint Exh.PD and the formal F.I.R. Exh.PD/1 was recorded by Faqir Hussain, Head Constable.
3. Briefly stated the facts of the case are that on the night of 9-8-1997 the complainant Riaz Hussain along with Abid Hussain had come to mauza Hussain Khan to see Altaf Hussain. After taking the evening meal, the complainant along with Abid Hussain, Altaf Hussain, Mst. Azra Batool wife of Altaf Hussain and other children went to sleep in the courtyard. At about 3 AM (mid-night) the complainant, Abid Hussain and Azra Batool woke up on hearing the sound of feet of a person coming. An electric bulb was on. The complainant and his accomplices witnessed that Nazir Ahmad while armed with a .12 bore double barrel gun along with two unknown persons armed with fire-arms were standing near the cot of Altaf Hussain. The complainant and other stood up and challenged the accused but two unknown persons asked them not to come near. In the meanwhile, Nazir issued two shots which landed on the left eye and cheek of Altaf Hussain and he succumbed to his injuries at the spot.
' The motive alleged was that few days prior to the occurrence, there was exchange of abuses between the deceased and Nazir over the turn of canal water on which Nazir threatened the deceased that he would be taught a lesson. Due to that grudge, it was alleged, the accused committed the murder of Altaf Hussain.
4. Manzoor Hussain S.-I. (P.W.13) took up the investigation of the case. He went to the place of occurrence, took into possession the dead body of the deceased, prepared injury statement (Exh.PF), inquest report Exh.PF/1, took into possession the blood-stained earth, khais, cot, pillow, dohar vide memo. Exh.PB, recorded statements of the witnesses and got prepared the site plans from the Patwari. Then, Muhammad Shaukat Ali S.-I. (P.W.14) started with the investigation. All the accused namely Liaqat Ali, Riaz, Zawar and Arshad accused were arrested on 13-10-1997. These four accused in custody got recovered, bamboo stick, dang and guns. Nazir accused was arrested on 28-12-1997 and he while in custody on 30-12-1997 got recovered gun P.13 which was taken into possession vide memo. Exh.PM. A case under section 13 of Arms Ordinance. XX of 1965 was also registered. After completion of the investigation, "all the above named five accused were challened to face the trial.
5. At the trial, prosecution, in order to prove its case, produced 14 witnesses in all. The learned DDA tendered in evidence report of the Chemical Examiner (Exh.PN) report of the Serologist (Exh.PP) and closed the case of the prosecution. Accused in their statements under section 342, Cr.P.C. Denied the allegations and pleaded false implication. After conclusion of the trial, except Nazir all the remaining accused were acquitted of the charge.
6. Learned counsel for the appellant after having read the prosecution evidence and other material on record submitted that there is clear conflict between ocular account and the medical evidence inasmuch as according to F.I.R. And the eye-witnesses, the appellant fired two shots which landed on left eye and chek of the deceased but according to the doctor who conducted the Postmortem examination on the dead body of the deceased found one entry and two exist wounds on the person of the deceased. Further submitted that the place where the appellant, according to P. Ws was standing, the injuries as alleged by the prosecution, could not have been caused on the person of the deceased and the injuries could be caused only if the accused was standing towards the legs of the deceased. Added that complainant Riaz Hussain maternal uncle and Abid Hussain first cousin of the deceased are chance witnesses.
' It was submitted by learned counsel that motive has been disbelieved by the trial Court, recovery has also been disbelieved and that though according to F.I.R., the appellant and others resorted to firing but no crime empty was recovered from the spot. Further submitted that the appellant never remained absconder. In fact at the time of occurrence he was serving in PANDA Soap Factory at Faisalabad and the Investigating Officer though went to the factory but did not make any effort to search the appellant. Also submitted that the appellant had no enmity with the deceased so there was no fun on his part to have committed the murder of the deceased and only due to suspicion, the appellant was involved. It was again argued that according to case of the prosecution, there was a dispute of water turn between the deceased and the appellant when in fact, the appellant had no land near to the land of the deceased and this fact has been verified in cross-examination by Sarfraz Aslam, P.W.3.
' Learned counsel submitted that set up of the cots as shown in the site-plan is against the social norms of our society.
' Concluding his submissions, learned counsel submitted that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
7. Learned counsel for the State assisted by learned counsel for the complainant who has filed Criminal Appeal No. 1078 of 2000 submitted that it is a case of promptly lodged F.I.R. With name and role of the appellant, the occurrence having taken in place in the light of bulb, the appellant was recognized, ocular account is fully corroborated by medical evidence, Mst. Azra Batool being inmate of the house was natural witness of the occurrence and that she would not spare the actual culprit and falsely implicate the present appellant.
8. We have heard learned counsel for the parties and have gone through the evidence on record. In the instant case, the occurrence had taken place at 3 A.M. (mid-night) on 9-8-1997 and the matter was reported to the Police at 5-00 A.M. The same morning at Adda Mathroma by Riaz Hussain, complainant, maternal uncle of the deceased though distance between the Police Station and the place of occurrence was 9 kilometers. It was thus a case of promptly lodged F.I.R.
In all, three accused were named in the F.I.R. One named was present appellant while two others who were shown to be unknown were acquitted by the trial Court. Learned counsel for the appellant had laid much emphasis on the point that there was only one injury (entry wound) on the person of the deceased. We have gone through the statement of the doctor (P.W.9) who conducted postmortem examination on the dead body of the deceased as also the pictorial diagram. In our considered opinion there are two entry wounds one under the left eye and other on the eye-brow and two exit wounds on the backside of head of the deceased. There was thus no conflict as alleged by the defence between ocular account and the medical evidence.
' Even if we rule out of consideration the presence of the Riaz Hussain, maternal uncle of the deceased at the place of occurrence, being resident of 1-1/2 kilometers away from the place of occurrence, still presence of Mst. Azra Batool wife of the deceased could not be brushed aside by any stretch of imagination. She was the most natural witness of the occurrence. She before the Police as also before the trial Court has fully implicated the appellant. At the time of occurrence, the electric bulb was on. It was so stated in the F.I.R. And bulb also finds mention in site plan Exh.PA.
So the occurrence was witnessed by the P.Ws. In the light of bulb and the appellant was duly identified.
The occurrence took place on 9-8-1997 while the appellant was arrested on 28-12-1997, that is, four months and 20 days after the occurrence and even proceedings under sections 87/88, Cr.P.C.
Were initiated against the convict appellant.
' No crime empty having been recovered from the spot, mere recovery of fire-arm on the pointation of the appellant would not lend any support to case of the prosecution.
' Learned counsel for the appellant while arguing the case had himself stated that there was no enmity between deceased and the appellant, hence there was no need on the part of the appellant to have fired at the deceased. If it is admitted to be correct, then there was no question on the part of the widow of the deceased to falsely implicate the appellant.
Believing the presence of Mst. Azra Batool widow of the deceased at the spot and the ocular account having been fully supported by medical evidence coupled with long abscondence of the appellant spreading over more than four months, we are fully satisfied in our mind that the prosecution has been successful in proving its case against the appellant beyond any shadow of doubt. Resultantly, the appeal filed by convict appellant is dismissed, conviction and sentence recorded against the appellant by the trial Court is maintained in toto, death sentence is confirmed and Murder Reference is replied in the affirmative.
Now, we take up Criminal Appeal No.1078 of 2000 filed by the complainant against acquittal of the respondents. No role whatsoever was attributed to the respondents. Neither any description of the unknown accused was given in the F.I.R. Nor any identification parade was held. The reasoning given by the trial Court for acquittal of the respondents are supported from the evidence on record and no valid exception can be taken thereto. There is thus no merit in this appeal, which is dismissed.