FAZAL-E-MIRAN CHAUHAN, J. - Appellant namely Abdul Ghaffar, was tried under Sections 302, 148, 149, P.P.C., for the murder of Liaqat Ali (deceased), in case F.I.R. No. 254, dated 6.7.2000, registered with Police Station Khudian, District Kasur, by Mr. Jahandar Khan Banth, learned Additional Sessions Judge, Kasur, camp at Central Jail, Lahore, under Section 302(b), who vide his judgment dated 3.12.2002, convicted and sentenced him to death with compensation of Rs. 50,000/- under Section 544-A, Cr.P.C. Payable to the legal heirs of the deceased. In default whereof, to further undergo one year's S.I. The convict- appellant has filed the instant appeal against his sentence and conviction.
2. The convict has filed appeal, while learned Sessions Judge has also sent a Reference to this Court under Section 374, P.P.C. For confirmation of death sentence. This judgment shall dispose of the appeal, as well as, the Murder Reference.
3. Brief facts of the case, as given by the complainant namely Jamal Din (PW.7) in the F.I.R. (Ex.PD/1) are that, he was resident of Budh Sing Wala and about 9/10 years ago, Muhammad Anwar Bohar son of Akbar Dogar, caused damage to their crop with cattle and due to this reason, a fight took place between Muhammad Anwar Bohar and themselves, in which, Muhammad Anwar was injured seriously and they had snatched his rifle and then by the intervention of Dogar Beradari, compromise was effected between them, but Muhammad Anwar Bohar nourished grudge in his heart for this dishonour Liaqat Ali alias Bagga, brother of the complainant, went outside from the houses in the morning, who was not wearing Qameez; however, he was wearing Tehmad. At about 6.45 a.m., after easing himself, he went to the bath room of the Mosque, where he sat down to wash his hands. In the meantime, (1) Abdul Ghaffar son of Hakim Ali; (2) Rustam alias Kali son of Allah Ditta armed with 12 bore, (3) Jala alias Jali son of Jaman armed with rifle encircled the bath room, while (4) Muhammad Anwar Bohar son of Akbar armed with rifle 222 bore, (5) Hakam Ali son of Waryam armed with 12 bore gun were standing few steps behind. Both the said persons raised Lalkara and asked Abdul Ghaffar etc. To do away with the deceased Liaqat All alias Bagga, upon which, Abdul Ghaffar accused armed with 12 bore gun fired, which hit on right buttock of Liaqat AN, then Rustam alias Kai fired with his gun 12 bore hitting him on the inner side of the right thigh of Liaqat AN, Jalal Din alias Jalli, while armed with his rifle made firing at Liaqat AN, Muhammad Anwar Bohar and Hakam AN, while standing behind co-accused made firing in the air. Due to terror, no one came forward, but on hearing the sound of firing, the persons from the village came out from their houses and the accused, while giving threats and waiving their weapons fled away from the spot. The complainant, Basharat, and Abdul Jabbar rushed towards Liaqat Ali, who smeared with blood, was crying that, he be carried outside from the bath room. They carried him out of the bath room and he succumbed to the injuries in their hands. Besides him, occurrence was witnessed by Basharat, Abdul Jabbar, Muhammad Anwar etc. Motive behind the occurrence, as narrated, was that, about 9/10 years ago, Muhammad Anwar Bohar son of Akbar Dogar, caused damage to their crop with cattle and due to this reason, a fight took place between Muhammad Anwar Bohar and themselves, in which, Muhammad Anwar was seriously injured, they also snatched his rifle, later on, on the intervention of Dogar Beradari, compromise was effected between them, but Muhammad Anwar Bohar nourished grudge in his heart and for this reason, they committed the murder of Liaqat AN alias Bagga (deceased).
4. After completion of investigation, challan was prepared and submitted before the learned Trial Court. The accused pleaded not guilty and claimed to be tried. In order, to prove its case; prosecution produced as many as ten (10) PWs. Statement of the appellant was examined under Section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on oath as required under Section 340(2), Cr.P.C.
5. Learned counsel for the appellant argued that, prosecution has failed to prove motive in the case and the same is shrouded in mystery, because, it is admitted that, after the previous fight or altercation, a compromise was effected between the parties and as a result of that, inter se, marriages took place between both the families. There is no new occurrence or occasion for the accused party to commit murder of deceased, as narrated in the F.I.R. Further states that, there are material discrepancies in the statements of eye-witnesses, complainant, and the Investigating Officer of the case. As per statement of the complainant (PW-7), he reached at the spot after the accused left the place of occurrence making it an un-witnessed occurrence. The false implication of Muhammad Anwar Bohar and Hakim Ali, who were subsequently declared innocent by the Investigating Officer, declaring that, they were not present at the spot also created doubt in the prosecution case and negated the version, got recorded by the complainant. Also argued that, blood-stained earth was not collected from the place of occurrence i.e. From inside the bath room of Mosque, which is a pacca construction and the admission on the part of the Investigating Officer that, he collected blood-stained earth from outside the bath room negates the F.I.R. And case of the prosecution that, deceased was murdered when, he was sitting in the bath room. Material discrepancies were found in the statements of the PWs inter se, as well as, the statements recorded by the police and before the Court under Section 164, Cr.P.C. Argued that, it is stated in the F.I.R., as well as, by the PWs in their statements before the Court that, beside the appellant, the other co-accused made indiscriminate firing to create harassment and died, not allow the witnesses to rescue the deceased, is belied from the fact that, no empty was recovered from the place of occurrence or from the place, where the other co-accused were stated to be standing and firing.
The recovery effected from the appellant and co-accused was a joint recovery. No independent witness of the locality was associated, which by itself is violation of Section 103, Cr.P.C. No body from the vicinity was associated by the police during recovery proceedings, despite the fact that, number of houses were located around the place of occurrence. Beside this, argued that, defence version was that; Liaqat (deceased) alongwith Jamal Din alias Iqbal (Complainant) and others are thieves by profession and they entered in the Haveli of Haikm Ali for committing theft of his cattle, Muhammad Tufail, Abdul Jabbar and Rustam were present in the Haveli. On hearing noise, they woke up and found that, the deceased alongwith others were standing in the compound of the Haveli and on their challenge, deceased alongwith others started firing causing injury to Muhammad Tufail, Abdul Jabbar and Rustim, who were also medically examined by the police, but, their defence version was not recorded with mala fide intention by the police. The deceased received injuries because of firing of his companions. Further argued that, the medico-legal reports of the injured were presented before the police and also as defence evidence before the learned Trial Court. The appellant never fired at the deceased while he was standing in the bath room. The learned Trial Court, without taking into consideration the flow in the statements of PWs, proceeded to believe them and awarded maximum sentence to the petitioner. Further submits that, the empty of 12 bore gun was taken into possession on 6.7.2000, double barrel gun recovered from the appellant on 23.7.2000 were sent, to the laboratory together, which created doubt regarding the recovered empty. Finally argued that appeal be accepted and conviction and sentence be set aside.
6. Conversely, learned Deputy Prosecutor- General, for the State vehemently opposed this appeal by arguing that, it is a promptly lodged F.I.R. Without premeditation. Muhammad Anwar Bohar, who was injured by the complainant party about 9/10 years ago, did not forget the grudge inspite of compromise and inter se marriages of both families. In order to take revenge of previous enmity, the accused party criminally assaulted with fire-arm weapon upon the deceased, who after receiving fatal injuries at the hand of the appellant, succumbed to the same, which fact is fully corroborated from the medical evidence. Further argued that, the fatal injury caused by the appellant on the buttock of the deceased was fired from such a close range; that Wad was also recovered by the Doctor during post-mortem examination of the deceased. There was also blackening and burnt on the mouth of the inverted injury, caused by the appellant. The weapons, used by the appellant and his coaccused were recovered after their arrest on their Plantation and appellant led the Investigating Officer in presence of the witnesses and got recovered double barrel gun, used by him. The empty, recovered from the place of occurrence was handed over by the Moharrir (PW-5), who handed over the same to Constable Jamshed Ali (PW-3), who deposited the same in the office of Forensic Science Laboratory on 22.7.2000, whereas, the gun was recovered on the Plantation of the appellant on 23.7.2000, which was sent and received in the office of Forensic Science Laboratory on the same day i.e. 23.7.2000. Argued that the arguments that a fake empty was prepared or managed by the police after recovery of gun and then empty and gun were sent together to the Laboratory for consideration had no force and is belied by the document.
In the report of the Laboratory, it is written that empty was recovered on 22.7.2000 and the gun on 23.7.2000. Further argued that, case of the prosecution against the appellant is proved and statement of complainant and that of eye-witnesses is fully corroborated by the report of Forensic Science Laboratory and the M.L.R. Further argued that, as none of the respectable of the locality agreed to join the investigation and associated with the police at the time of recoveries, the Investigating Officer after completing the formalities joined the recovery witnesses Abdul Jabbar (PW-8) and Bisharat Ali. The fire-arm weapon (12 bore gun) recovered from the appellant was found to be in a fit and working condition. Finally argued that, PWs have fully supported the prosecution version, which is fully corroborated by the medical evidence, as well as, recovery from the place of occurrence to connect the appellant with the murder of Liaqat. Ali (deceased) and there are no extenuating circumstances in the case for taking a lenient view.
7. We have examined the record very carefully in the light of arguments advanced by the learned counsel for the appellant, as well as, learned Deputy Prosecutor- General, for the State and the documents i.e. F.I.R., M.L.R.'s, report of Forensic Science Laboratory and recovery memos.
8. Defence has failed to dislodge or create any dent in the statements of complainant Jamal Din (PW-7) and Abdul Jabbar (PW-8), except few minor discrepancies. Both the PWs corroborated the statements of each other. The ocular version is fully supported and proved by the medical evidence. The seat of injuries, mentioned by complainant (PW-7) in the F.I.R. Are corroborated by the post-mortem examination of deceased. Injury No. 1 on the buttock of the deceased, attributed to the appellant was declared by Doctor (PW-4) to be fatal and sufficient to cause death of Liaqat (deceased). PW-7 and PW-8 were subjected to a very lengthy cross-examination by the learned counsel for the appellant, but he failed to dislodge or shatter their evidence. The version of defence that, occurrence took place in the Haveli of Hakim Ali accused, is belied from the fact that, 12 bore empty was taken into possession from outside the bath room of Mosque. Blood-stained earth was taken from the outside room. The Investigating Officer in the cross- examination stressed to the fact that, empty was taken into possession from the place of occurrence i.e. Near the bath room.
Similarly, blood-stained earth was taken into possession outside the bath room (as it was a Dacca bath room), and the deceased was brought outside the bath room by the eye-witnesses. He had explained that, outside bath was kacha ground from where blood-stained earth could be collected. These two factors belied the stance that, occurrence took place in the Haveli of Hakim Ali.
The other argument that recovery witnesses are related to each other and the recovery effected is in violation of Section 103, Cr.P.C. Provisions of Section 103, Cr.P.C. Are though mandatory in nature, but where not complied with, the proceedings of search does not become illegal, unless it is shown that, proper measures were not taken by the Investigating Officer to secure or join the independent person in the search proceedings. Where non-joining of respectable of the locality is fully explained, then the same can be relied upon. It is explained by the Investigating Officer that, though the house from where, the recoveries were made are surrounded by other houses, but no body was present there at that time. No family members of the appellant were residing in the house. We have given very anxious thought to this fact that, now-a-days, independent residents of the locality do not come forward to give evidence and, particularly, in murder cases and prosecution has to associate the witnesses available at that time. The same appears to be the problem in this case. Reference is made to Abdul Hamid and another v. The State (PLD 1960 (W.P.)
Peshawar 141), Jogi and others v. The State (PLD 1961 (W.P.) Karachi 179), Ahmad Hayat and others v.
The State (PLJ 1983 SC 207) and Irshad Ahmad and others v. State and others (PLJ 1996 SC 758).
9. In this view of the matter, we hold that, recovery was effected on the Plantation of the appellant and the gun recovered matched the empty taken into possession from the place of occurrence shows that, the appellant caused fatal injuries to the deceased' by using his 12 bore gun (Ex.PG).
10. We are of the view that, prosecution has successfully proved guilt of the appellant Abdul Ghaffar for committing the murder of Liaqat All alias Bagga (deceased). We find no ground for interference in the judgment passed by the learned Trial Court. Resultantly, Criminal Appeal No. 2058 of 2002, filed by the appellant namely Abdul Ghafar, is dismissed. Death sentence of the appellant Abdul Ghaffar is confirmed. Murder Reference is answered in positive Criminal.