' ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of Criminal Appeal No,20-J of 2000 as well as Murder reference No,23 of 2000.
2. The matter pertains to case F.I.R. No,237 dated 7-8-1998 registered at Police Station, Sadar Lala Musa, under section 302 P.P.C.
3. It arises on account of the judgment dated 11-11-1999 handed down by Ch. Shabbir Hussain Chattha, learned Additional Sessions Judge, Gujrat, whereby he convicted the appellant Shabbir Hussain under section 302(b), P.P.C. For committing intentional murder of Aamir Ali and sentenced him to death as Tazir. He further ordered the appellant/convict to pay a sum of Rs, 40,000 as compensation to the legal heirs of the deceased Aamir Ali as required under section 544-A of the Cr.P.C. Or in default whereof, to undergo simple imprisonment for 6 months.
4. The appellant/convict is the brother of the complainant Muhammad Ramzan and is the maternal-uncle of Saif-ul-Hassan (P.W.-4). The occurrence had taken place in the house of the sister of the complainant and the appellant, where Aamir, the deceased had gone. According to the complainant, he accompanied him and both of them were coming out of the house of the complainant's sister Mst. Ghulam Fiza when the occurrence had taken place.
5. The motive part of the story is that Muhammad Ramzan, the complainant, owned a house in village Ali Chak which is also the Chak where the occurrence took place. It was said that the appellant/convict Shabbir had illegally occupied the said house and the complainant had filed a civil suit which was an eyesore for the appellant convict.
6. Although it is the complainant's case that he accompanied his son to the house of his sister but there is sortie skepticism about it because it has come from the mouth of the Investigating Officer and even the complainant himself that in fact he actually worked at a store in Jhelum which was at some distance from Ali Chak. Between the two it takes about half an hour by road. But Saif-ul- Hassan is the son of Mst. Ghulam Fiza and is the natural witness of the occurrence. Who while narrating the occurrence stated:-- "On 7-8-1998 at about 11-30 a.m/12-00 Noon my maternal uncle Muhammad Ramzan and his son Aamer came to our house in Ali Chak. At about 2-30 p.m. My maternal uncle/complainant Muhammad Ramzan and his son Aamer proceeded to Gujrat. When they came at the outer door of our house, I along with my mother Ghulam Fiza also accompanied them to say them good-bye.
Outside our outer door my maternal uncle accused Shabbir Hussain was present armed with pistol who made a Lalkara to end the race of complainant Muhammad Ramzan as complainant Muhammad Ramzan had filed civil suit against the accused. In our presence and before our eyes accused Shabbir Hussain present in the Court fired two pistol shots at Aamer which hit Aamer on front of his chest near the right and left nipple. Due to the injuries Aamer fell down and succumbed to the injuries at the spot. I, my mother Ghulam Fiza and complainant Muhammad Ramzan witnessed the occurrence."
7. The same was the story of Muhammad Ramzan (complainant), on whose statement the F.I.R.
(Exh.PB) was recorded.
8. Elaborating further the motive part of the story, Muhammad Ramzan (P.W.-3) in cross- examination stated :-- "I had purchased my house in 1976 which was illegally occupied by the accused. After purchasing my house my two brothers Nazir and Bashir lived there. Then another body lived there who was Boot Polisher. From that boy accused Shabbir Hussain forcibly got possession of the house. It is incorrect to suggest that after the death of my brother Bashir his son Tanvir lived in that house.
After getting occupation of my house forcibly accused Shabbir Hussain lived in that house for about 7 days. I have filed a civil suit against accused Shabbir Hussain and Tanvir. Volunteered at the time of getting forcible possession Tanvir was also present with the accused Shabbir Hussain.
After arrest of accused Shabbir Hussain, Tanvir remained in possession. I got prossession of my house as a result of intervention of one Noor Shah brother of MPA Manzoor Shah. In the civil suit Tanvir recorded a statement and on behalf of accused Shabbir Hussain his counsel recorded his statement and the civil suit came to an end. "
9. Dr Farooq Ahmad Bungish (P.W.Ll) had conducted the post-mortem examination on the dead- body of Aamir, a person of 24 years on 8-8-1998 and he found the following injuries on his person:- -
(1) A fire-arm injury wound 2 c.m. x 1-1/2 c.m. x going inward over the front of upper part of right side of the chest 3 c.m. Away and medial to the right nipple. No blackening was present. Note: A metallic body recovered beneath the entry wound lying over the rib gage.
(2) A fire-arm injury wound 1/2 c.m. x 1/2 c.m. x margin inverted over the front and middle part of left side of the chest 3 c.m. Away from the mid sternal line, no blackening was present. Exit wound 1- 1/2 c.m. x 1/2 c.m. Back of right side of the chest lower aspect 2 c.m. Away from the mid vertebral line.
' He recorded the following opinion during his testimony:-- ' " After my careful external and internal post-mortem examination of the dead-body, I was of the opinion that death had occurred due to shock and excessive haemorrhage as the result of injury No,2 which was sufficient to cause death in ordinary course of nature."1 ' Exh.PM is the post-mortem report, while Exh.PM/1 is the pictorial representation.
10. Whereas, the report of Serologist pertaining to the blood stained earth is in the positive and according to the Forensic Science Expert, the pistol recovered from the appellant/convict was in a working condition.
11. Mr. Mumtaz Ahmad Khan (P.W.10) is the Investigating Officer, who was posted at Police Station Lala Musa. He recorded the statement of Muhammad Ramzan at about 3-30 p.m. He later proceeded to village Ali Chak, secured the blood stained earth from the spot, prepared the rough site plan, the injury statement and the inquest report pertaining to the deceased. He sent the dead-body to the hospital for post-mortem examination and later he received the last worn clothes of the deceased through his Constable along with the report. He got prepared the site plans through the Draftsman (Exh. PF and Exh. PF/1).
12. The appellant/convict was arrested on 13-8-1998. At the relevant time, he was found in possession of 7-MM rifle. This of course he had not used but was just keeping with himself. He later got recovered crime weapon i.e, the pistol from his residential quarter in village Ali Chak and which was secured by the I.O. The case property consisting of the blood stained earth and the weapons recovered were given to the Muharrir on 19-8-1998 for safe custody in the Malkhana.
13. The Investigating Officer did not visit the Bata Shop at Jhelum where the complainant worked, to ascertain whether the complainant was there at the shop at the relevant time or not? But he went on to say that an employee of Bata Shop appeared before him and informed him that Ramzan was present there. However, this employee was not produced and according to the statement of the complainant being Friday the shop was closed.
14. Amongst the formal witnesses, we have Ghulam Hussain who is the witness of the securing of the blood stained earth. Muhammad Azam had identified the dead- body. Zia Ullah, Constable, had escorted the dead-body and had produced the last worn clothes of the deceased on receiving the same from the doctor before the I.O. Asif Mehmood, Constable, carried the sealed parcels to the laboratory at Lahore. Akhtar Naqash, Draftsman, had prepared the site plans, while Basharat Ahmad, Muharrir (P.W.9) had kept the sealed parcels in safe custody and later handed these over to Asif Mehmood for onward transmission to the Laboratory at Lahore.
15. Muhammad Hanif (P.W.5) is the witness of the recovery of 7-MM rifle and the crime weapon i.e, the pistol, which the appellant/convict got recovered and which was taken into possession vide memo Ex. PD along with five live bullets. He is the brother in law of the complainant, but at the same time, the brother in law of the appellant as well.
16. Shabbir Hussain appellant/convict while recording his statement under section 342 of the Cr.P.C.
Denied the recovery, expressed his lack of knowledge about the reports and pleaded that he was innocent. He produced no one in defence.
17. There is no dispute with respect to fact that the house where the occurrence had taken place, was occupied by the sister of the complainant who is also the sister of the appellant/convict. This house is located in Ali Chak, whereas, the house of the complainant is also located in Ali Chak.
Learned counsel for the appellant stated that the complainant was a chance witness. But he could not convincingly establish this, particularly when the case of the complainant was that being a Friday he was in Ali Chak since the shop where he worked was closed. But anyway, Saif ul Hassan is the most natural eye-witness, who stood the testimony of cross-examination successfully and his statement could not be impeached. He is equally related to the parties being the son of Mst.
Ghulam Fiza. There is no reason for him to fabricate a story or to substitute another assailant for Shabbir Hussain.
18. It was further argued by the learned counsel for the appellant that injuries Nos.l and 2 having different dimensions, there is a possibility that two weapons were used. The forensic Science Expert, who has his office not far away from this Court, was summoned for today. He after examining the doctor's testimony and the details of injuries categorically opined that both these injuries were possible with the same weapon. That the dimensions could vary because of the sutface of the body and the distance from where the fire was shot at the deceased. After this opinion was given to this Court, the learned counsel for the appellant/ convict did not press his objection any further and argued the case on merits.
19. This is a case which is fully established. There is no dichotomy in the ocular account and the medical account. The ocular evidence particularly of Saif-ul- Hassan (P.W.4) is believable and is confidence inspiring. Between such close relations, one. Does not expect false accusations or a wrong substitution.
20. Consequently, we uphold the order of conviction and sentence there being no mitigating circumstance and dismiss the appeal of the appellant/convict Shabbir Hussain.
21. The death sentence is, therefore, confirmed and the Murder reference is answer in the positive.