' RAJA FAYYAZ AHMED, J.---Petitioner Qamar-uz-Zaman alias Kala along with his co-accused Tariq alias Tahiri were tried by the learned Additional Sessions Judge, Gojra, District Toba Tek Singh in case F.I.R. No, 104 dated 31-3-2001 for the offence under sections 302/34, P.P.C. Registered at Police Station, Saddar, Gojra at the instance of Mst. Shamim Bibi (P.W.3) widow of Muhammad Iqbal for committing Qatl-e-amd of her husband Muhammad Iqbal. Vide judgment dated 27-4-2004, the petitioner and his co-accused both were convicted and sentenced under section 302(b), P.P.C. The petitioner was sentenced to death as Tazir and was ordered to pay a sum of Rs,50,000 by way of compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., or in default thereof to undergo six months' S.I. His co-accused Tahiri was sentenced to imprisonment for life under sections 302(b)/34, P.P.C. And ordered to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., or in default thereof to further undergo six months S.I.
Benefit of section 382-B, Cr.P.C. Was extended in his favour. Petitioner Qamar-uz-Zaman and his co-accused challenged their convictions and sentences before the learned Lahore High Court, Lahore respectively through Criminal Appeals Nos.242-J of 2004 and 243-J of 2004. The record and proceedings of the case were forwarded to the learned High Court by the learned trial Judge under section 374, Cr.P.C. (registered as Murder Reference N. 341 of 2004) for confirmation of the death sentence of Qamar-uz-Zaman petitioner. Vide judgment dated 7-7-2009, passed by learned Division Bench of the High Court, the Criminal Appeal of convict Tariq was accepted and, he was acquitted of the charge for the reasons given in paragraph No,111 of the judgment, whereas; the Criminal Appeal of petitioner Qamar-uz-Zaman, was dismissed and the Murder Reference was answered in affirmative by confirming the death sentence awarded to the petitioner.
2. The precise relevant facts of the case as reflected from the F.I.R. (Exh.PC), registered on the narration of complainant Mst. Shamim Bibi (P.W.3) have been given in paragraph No,2 of the judgment impugned herein, are reproduced below for reference:-- "Briefly the facts according to F.I.R. Exh.PC narrated by P.W. Mst. Shamim Bibi are that Muhammad Iqbal (deceased) was her husband and he had made a `karyana' shop adjacent to their house.
The shop had two doors; one towards the bazaar and the second door was towards courtyard of their house. On 31-3-2001 at about 3-30 p.m., her husband Muhammad Iqbal (deceased) was present, as usual, in the shop whereas she along with her children Muhammad Afzaal, Aamir, Riaz and Mst. Musarrat Bibi was sitting in the courtyard of her house when they heard noise of abuses from the shop and she along with Muhammad Afzal, Aamir Riaz and Mst. Musarrat Bibi rushed towards the shop through the door which opened in the courtyard of their house and saw Qamar- uz-Zuman and Tariq accused, both armed with .12 bore guns. Both the accused caught hold of her husband Muhammad Iqbal and took him in the bazaar outside the shop. Tariq accused raised a lalkara while catching hold of Muhammad Iqbal deceased that he be taught a lesson for keeping friendly relations with Walayat Jat and thereafter Qamar-uz-Zaman accused fired with his gun .12 bore which landed on Muhammad Iqbal deceased underneath the armpit injuring him through and through of left upper arm. Muhammad Iqbal deceased fell on the ground and the accused fled away from the spot."
' The motive of the crime, as given by the complainant, was that Muhammad Iqbal deceased had friendly relations with one Walayat Jat, who was inimical towards both the nominated accused and due to this grudge in mind the accused committed the murder of her husband Muhammad Iqbal deceased.
3. The prosecution in order to substantiate the accusation produced 13 witnesses including Dr. Khalid-ur-Rehman, Medical Officer (P.W.2), complainant Mst. Shamim Bibi (P.W.3), Muhammad Afzaal (P.W.4) and Aamer Riaz (P.W.5). Scaled and visual site plan were produced as Exh.PA and Exh.PA/1, injuries statement and inquest report of the deceased were produced as Exh.PK and Exh.
PL. The application for issuance of proclamation and warrant of arrest were respectively produced as Exh.PN, Exh.PH and Exh.P1. Memos relating to the securing of blood stained earth and possession of parchat of the deceased were produced as Exh.PC, Exh.PE and Exh.PJ. P.Ws. Mst. Musarrat Bibi, Muhammad Tufail and Haider Ali being unnecessary were given-up by the prosecution. Reports of Forensic Science Laboratory and Chemical Examiner were produced as Exh. PO and Exh.. PP. ' After close of prosecution evidence the petitioner and his co-accused were examined by the learned trial Court under section 342, Cr.P.C. In the light of the incriminating evidence brought on record at the trial, which the petitioner and his co-accused denied and controverted and both of them pleaded their innocence. The petitioner and his co-accused did not opt to record their statements on oath in disproof of the charge as envisaged by section 340(2), Cr.P.C., nor produced any evidence in defence except plea of innocence. No other plea was taken by the petitioner in his statement recorded by the learned trial Court. His co-accused Tariq however; in answer to question No, 5 in his statement under section 342, Cr.P.C. Stated asunder:- "In fact the deceased had illicit relations with Manzooran Bibi wife of Abdul Rehman and he was caught red-handed with Manzooran Bibi while committing zina with her. On that night Ehsan Ullah came in he shop of Muhammad Iqbal deceased where he was asked to return the pair of shoes and one `khais' of Muhammad Iqbal. The accused of murder of Muhammad Iqbal deceased were influential persons and due to influence on police they have been declared innocent, in spite of the application submitted by the complainant to DIG, Faisalabad dated 5-10-2001, No, 37463. I was not present at the time of occurrence. I was innocent in this case. I do not know anything about the occurrence. I was involved in this case due to the enmity of the other persons of the village. I did no instigate the co-accused Qamar-uz-Zaman. The eye-witnesses of the case are interested witnesses who are wife and sons of the deceased."
4. The learned Advocate Supreme Court for the petitioner and the learned DPG for the State have been heard. The impugned judgment and the evidence on record (copies available on the paper book) have been carefully and minutely perused with their assistance including the judgment passed by the learned trial Court.
' Learned counsel for the petitioner contended that no independent witness was produced by the prosecution. Motive setup by the complainant was not believed by the learned High Court. The prosecution has not been able to substantiate the charge against the petitioner beyond shadow of any reasonable doubt inasmuch as; the recovery of the alleged weapon of offence from the petitioner has riot been believed in view of the negative F.S.L. Report. Hence, according to the learned counsel in the circumstances of the case, the petitioner was entitled to earn benefit of doubt.
5. Controverting the above contentions, learned DPG contended that motive of the offence disclosed by the complainant though was categorically urged at the trial by the ocular witnesses, which was believed by the learned trial Court but for reasons recorded in the impugned judgment, the same was not believed by the learned High Court which would not per se be fatal to the criminal liability of the petitioner duly proved through the ocular account of the P.Ws. Corroborated by the medical evidence, who carried no animosity or ill-will against the petitioner to falsely involve him in the case and being the natural witnesses of the occurrence, which took place within their view, was sufficient to prove the charge against the petitioner. The motive setup by the prosecution even if not proved or disbelieved for any reason would not ipso facto in the circumstances of the case affect adversely on the prosecution nor is the essential ingredient, constituting the offence proved through evidence of ocular witnesses, whose given account of the occurrence was not only straightforward and consistent rather worthy of implicit reliance and convincing, corroborated by medical evidence therefore, the impugned judgment is unexceptionable.
6. The contentions put forth noted above on behalf of the parties have been considered and carefully examined in the light of the evidence on record. Dead-body of Muhammad Iqbal deceased, husband of complainant Mst.Sharaim Bibi was brought to Dr. Khalid-ur-Rehman, Medical Officer, General Headquarter Hospital, Gojra on 1-4-2001 by Muhammad Ishfaq, FC No, 718 (P.W.9). Autopsy of the dead body of the deceased was carried out by the said doctor, Medical Officer (P.W.2) on the aforementioned date at 7-00 a.m. On examination, as duly recorded in the PM report Exh.PB, the deceased suffered following firearm injuries: -- "1. A lacerated through and through wound on left upper arm and with entry wound 04.Cm x 3.5 cm on outer side and exit wound 4.5 x 4 cm on inner side. On dissection, skin, muscles and blood 'vessels were damaged. A plastic wad was recovered from the wound and handed over to the police.
2. Multiple lacerated wounds of entrance in an area of 7 cm x 6 cm on upper and outer side of left chest measuring 1 x 1 cm, four in number. On dissection left chest wall, left lung and pleaura, heart and blood vessels, right lung, and pleaura were damaged.
3. A swelling 20 cm x 10 cm on outer side of left chest was present. On dissection six in number of pellets were recovered and handed over to the police."
' In his opinion the injuries noted above were ante-mortem in nature caused by firearm. Injuries Nos.1 and 2 were sufficient to cause death of the deceased in the ordinary course of nature resulting into haemorrage and shock. The probable time between the injuries and death was immediate and between death and postmortem was about 12 hours. The former finding corroborates to the version of the complainant as given in the report Exh.PA that deceased on having, suffered the gun shot wounds died at the spot. After PM examination, the police papers, last worn clothes of the deceased, a sealed phial and carbon copy of the post mortem report were handed over to Muhammad Ishfaq, constable No,718, who also signed the injuries statement and the inquest report. This witness was subjected to cross-examination by the defence but nothing favourable to the accused could be brought on record. Thus, the prosecution has been able to prove that the death of the deceased was homicidal caused by firearm injuries.
7. According to Mst. Shamim Bibi complainant, on 31-3-2001 at about 1-30 p.m. Her husband Muhammad Iqbal was present as usual in the shop, while she along with Muhammad Afzaal, Aamer Riaz (her sons) and Mst. Musarrat Bibi (her daughter) were sitting in the courtyard of their house when they heard noise of abuses from the shop of her husband. On this, she along with her sons and the daughter rushed to the shop through the door opening in the courtyard of their house and saw, both the accused Qamar-uz-Zaman alias Kala (petitioner) and Tariq alias Tahiri armed with .12 bore guns and the later caught hold of her husband Muhammad Iqbal and took him outside the shop. Tariq accused raised lalkara, while catching hold her husband Muhammad Iqbal that he be taught a lesson for keeping friendly relations with Walayat Jat. Thereafter Qamar-uz- Zaman (petitioner) fired with .12 bore gun, which landed underneath the armpit of her husband Muhammad Iqbal, who fell down on the ground whereupon both the accused fled away from the spot. They looked for Muhammad Iqbal but found him dead on the spot. She reiterated about the motive disclosed by her in the report, mentioned above. Muhammad Afzaal, Aamer Riaz (P.Ws.4 and 5) at the trial fully corroborated to the version of the complainant on material particulars. It was proved by the prosecution that the deceased Muhammad Iqbal was living with the complainant (wife), sons, namely, Muhammad Afzaal, Aamir Riaz and daughter Mst. Musarrat Bibi jointly in the house and was running his business in the shop contiguous to his house with its opening inside the house and the front on the street, where also the house of the deceased had its main opening duly reflected in the site plan (Exh.PM) proved by the prosecution. This location of the house and the shop was not disputed or challenged at the trial by the defence. Therefore, the presence of the complainant and the ocular witnesses in their own house and having come out through the shop on hearing loud commotion coming from the shop and having witnessed the occurrence cannot be doubted for being quite natural in the circumstances of the case. They obviously had no enmity or any grudge against the petitioner to falsely involve him in the case on a capital charge and to let off the real culprit, who committed the murder of the husband of the complainant and the father of the other, ocular witnesses, F.I.R. Was promptly lodged by the complainant at the Police Station, situated at a distance of 12 miles from the place of occurrence by the widow of the deceased and therefore, the possibility of any deliberation or consultation on the part of the complainant before lodging the F.I.R. Also stands completely excluded. The version of the ocular witnesses in the context is fully corroborated by the medical evidence, which the defence failed to impeach or discredit. The ocular witnesses were subjected to cross-examination by the defence but their testimony on material particulars remained firm and consistent. The ocular account of the occurrence furnished by the complainant and (P.Ws.4 and 5) Is natural, straight forward and convincing, as well as, confidence inspiring. Hence appropriately was believed by both the learned Courts, which are one in finding, the petitioner guilty of the charge on correct appraisal of evidence, to which no exception can be taken. In absence of any animosity or strong motivating factor mere inter se relations of the ocular witnesses and with the deceased would not per furnish any valid basis to discard their evidence. The motive part of the prosecution story was believed by the learned trial Court while for the reasons given in paragraph 8 of the impugned judgment, the same has not been believed by the High Court, which in the circumstances of the case, would not be fatal to the prosecution case nor would the same provide any justification to award a lesser punishment of life to the petitioner as at times motive is in the mind of the person committing the offence nor the same is an essential ingredient to constitute of the offence of Qatl- e-amd.
8. In view of the negative F.S.L. Report of the Firearms Expert, the recovery of the alleged weapon of offence made at the instance of the petitioner was appropriately found to be inconsequential.
Hence for such reason as well, it was observed by the learned High Court that dishonest investigation of the case was not conducted by the 1.0., as he could have easily planted a weapon for getting a positive report of the Firearm Expert.
9. In our considered opinion, charge against the petitioner has been B established beyond shadow of any reasonable doubt, who has appropriately been punished to death for committing Qatl-e- amd of Muhammad Iqbal deceased being the normal punishment as provided by law in absence of any extenuating circumstance wanting in the case.
10. In view of the foregoing reasons, this Jail Petition being without any substance is dismissed. .