Rehmat Ali son of Muhammad Sharif caste Arain, factory worker, resident of village Othian, Tehsil Daska, District Sialkot, was tried for the murder of Riaz-ul-Haq by the Additional Sessions Judge, Gujranwala. The trial Judge by judgment, dated 14-12-1981 found him guilty. He was sentenced to death and a fine of Rs.6,000 or in default to further undergo two years R.I.
2. The convict has appealed to this Court. Reference for confirmation of death sentence is also before us. Both the matters are being decided by this judgment.
3. Riaz-ul-Haq was shot dead on the morning of 11th of November, 1980. The report Exh. P. K. Was lodged by his were Mst. Firdaus Begum at Police Station Satellite Town, Gujranwala. It was recorded by Fazal Hussain S.I./S.H.O., Satellite Town, Gujranwala.
4. The F.I.R. Was to the following effect: Mst. Firdaus Begum a graduate got married to Riaz-ul-Haq, in the year 1974, in Satellite Town, Gujranwala. After marriage she was blessed with two children. Her husband was vegetable and seed commission agent in vegetable market, Sheikupura Road, Gujranwala.
5. About 1 year prior to the occurrence, Riaz-ul-Haq left his parents and started living separately. He rented a portion of house No. 514-C Satellite Town, Gujranwala from Sh. Fazal Karim on a monthly rent of Rs.400. The rent portion consisted of bed room drawing room, store, kitchen and bathroom.
6. On the night before Riaz-ul-Haq was shot dead the door of the courtyard was locked from inside.
7. Drawing room, store and kitchen were also locked from outside. The family went to sleep.
8. On the morning of 11th of November, 1980 at 6 O'clock, Firdaus and her husband were up. Riaz-ul- Haq opened the door of bed room. He went to the kitchen to fetch some milk for children. Then he opened the lock of the door of the courtyard. Thereafter, he boiled some milk for children and went towards the bathroom for toilet. From bath room, a person, who was later on identified to be the appellant came out. Riaz-ul-Haq asked him who he was. He tried to catch hold of him.
9. Rehmat Ali while coming out of the bathroom fired three shots one after the other with his revolver which he was holding. While firing, he came into the street through the main gate of the courtyard. Riaz-ul-Haq chased him. Firdaus came out of the bedroom and raised hue and cry.
Riaz-ul-Haq and Rehmat Ali who still had the revolver grappled with each other. Then Shafqat son of Sanaullah and Zaheer son of Muhammad Jamil neighbourers of Riaz-ul-Haq came to the spot after hearing hue and cry. All of them caught hold of him. The revolver was snatched from him.
Rehmat Ali had concealed the dagger in his right foot canvas shoe which he was wearing. That too was taken into possession. Riaz-ul-Haq told his were that he was hit in the chest and should be removed to the hospital forthwith. Thereafter Sh. Umer alias Nina son of Haji Bashir Ahmad, Fateh Muhammad a relative and others came to the spot. The injured was removed to the hospital in the car of Sh. Umar alias Nana. The accused was left at the spot in the custody of Shafqat and Zaheer.
10. Firdaus Begum searched the house but found that nothing had been stolen. During grappling Rehmat Ali also received some injuries.
11. The prosecution evidence consisted of testimony of Mst. Firdaus and Shafqat who saw the incident. The rest of the evidence pertains to the recovery of revolver, crime empties from the spot, dagger from the appellant, medico-legal report and post-mortem report of Riaz-ul-Haq, medico- legal report of the appellant and the fact that the appellant was arrested at the spot.
12. Mst. Firdaus before the trial Court repeated almost the same story which she had told to the police. She stated that her husband had gone to kitchen to bring milk for children. By that time it was 6.00 a.m. After a short while she heard fire shot. She opened the window. She again heard firing. At that time the husband was outside the room. But before firing she heard her husband asking the intruder as to who he was. From the window she saw her husband grappling with the appellant. Riaz-ul-Haq was trying .To catch hold Ike arms of the accused. While grappling both came out An the street. Firdaus also came into the street and raised alarm. At that time Shafqat and Zaheer were standing in front of the house of Riaz-ul-Haq. They also came to the spot.
13. Firdaus, Shafqat and Zaheer tried to overpower the appellant but he managed to release himself. While retreating he fired. Riaz-ul-Haq was hit in the chest. Nevertheless, Firdaus Begum, Shafqat and Zaheer succeeded in catching hold of the appellant. When this was going on other neighbourers also came there. The appellant was disarmed. A dagger was recovered from his person which he had concealed in his canvas shoe.
14. Shafqat corroborated the testimony of Firdous which has been referred to above. He deposed that Riaz-ul-Haq was his neighbourer. On the day of occurrence at 6.00 a.m. He and Zaheer were standing in front of the door of the house of Zaheer. They wanted to go for the morning walk. While they were there, they heard firing. It came from the house of Riaz-ul-Haq. Thereafter, the appellant came out from the main gate of Riaz-ul-Haq---s house. Even then he was firing. Appellant fired at Riaz-ul-Haq while-both were in the street. Riaz-ul-Haq was hit in the chest on the right side, Rehmat was chased. Shafqat, Firdaus and Zaheer succeeded in catching hold of him. The revolver was taken from him. From his parsonal search a dagger, concealed in the canvas shoe in the right foot, was also taken into possession.
15. Shafqat said that Riaz told him that he had been hit in the chest and should be taken to the hospital. He was put in the car of Sh. Umar alias Nana and was taken to the hospital.
16. Dr. Zaheer medically examined Riaz-ul-Haq while he was still alive. He noticed: (1)Circular wound -- cm x -- cm blackening of margins around the wound on right aside of chest. 2 cm below the mid point of claviscal and going deep into chest. It was entrance wound.
(2)Lacerated wound -- cm x -- cm semi circular in mid line on back between the upper part of both shoulder blades: It was exit wound.
17. In addition to these two, a multiple abrasion and three abrasions were found on the back of left hand and little finger, on the back of right below, on right knee and on left knee.
18. Injuries Nos. 1 and 2 had been caused by firing.
19. Riaz-ul-Haq died on the same day. Post-mortem examination was conducted by Dr. Ashfaq Ahmad. Medical Officer, District Hospital, Gujranwala. The doctor noticed the same injuries.
20. According to the opinion of doctor, death was due to shock and haemorrhage as a result of injuris Nos. 1 and 2, which were sufficient to cause death .In the ordinary course of nature.
21. This very doctor examined the appellant. He noticed 11 injuries. Those were on the left side of forehead, nose, lower eye lid, middle of upper lip, right upper arm, back of right elbow joint, back of left; chest left clavicle (medial), right knee cap, front of right leg and on left knee cap.
22. All the injuries were found simple and caused by blunt weapon. Those were swellings, abrasions and contusions. The duration of the injuries was about 11 hours.
23. The appellant when examined by the trial Court denied the allegation of murder. He pleaded not guilty. He submitted that he was coming back from the factory after finishing his duty when the incident took place. The persons who killed Riaz-ul-Haq managed-to escape. He was caught at the spot. He was innocent.
"My only defence are the certified copies of plaints/Exh. D.A. D.A./1, written statement, Exh. D.B. And D.B./1 and final orders Exh. D.C. And Exh. D.C./1, passed in the two suits filed by Riaz-ul-Haq deceased against his father and brothers, who are the real culprits in this case, who alone had the real motive to kill him, and who arranged and committed this murder."
24. Learned counsel for the appellant after taking us through the evidence argued that the prosecution has not been able to prove its case beyond doubt.
25. Learned counsel submitted that the occurrence did not take place at 6.00 a.m. As alleged by the prosecution but was much earlier than that.
26. According to the learned counsel no one saw who the assailant was.
27. Learned counsel laid great stress on the discrepancy in the statement of Mst. Firdaus and her evidence before the trial Court. It was argued that in the former (Exh. P.R.) she had stated that her husband was hit while he was still within the premises, whereas before the trial Court she deposed that Riaz-ul-Haq was shot while he was in the street. According to the learned counsel this meant that Mst. Firdaus did not see the occurrence.
28. Learned counsel, therefore, wanted us to reject the testimony of Mst. Firdaus.
29. On this very ground learned counsel wanted us to discard the evidence of Shafqat because he too deposed that Riaz-ul-Haq was hit while he was in the street. According to the learned counsel the position in the F 1 R was to the contrary.
30. Learned counsel then once again referred to the statement of Mat. Firdaus. He argued that the were(now widow of Riaz-ul-Haq) admitted that Riaz-ul-Haq had 8 brothers and one step brother.
They were doing joint business but later on due to same differences civil litigation commenced between the brothers. In this connection learned counsel drew our attention to Exh. D.A.
31. Similarly, it was contended that there is a strong evidence that Riaz-ul-Haq had filed suit for ejectment against his real brothers. This was sufficient evidence to establish that the brothers were not getting on well. Their relations were strained. Hence the possibility could not be ruled out that they wanted to remove Riaz-ul-Haq from their way by getting him killed.
32. Learned counsel then referred to that portion of the evidence of Mst. Firdaus wherein she stated that prior to this occurrence another incident took place. That was cutting of the were gauze d' the window of the bed room. This incident was not reported to the police. According to the learned counsel this proved that some one was after her husband.
33. Learned counsel argued that Riaz-ul-Haq before his death told his were that he knew his assailants.
34. According to the learned counsel all these factors collectively created serious doubt about the implication of the appellant and the genuineness of the prosecution story.
35. In addition to these arguments, learned counsel emphatically argued that there was no legal justification for rejecting the statement of the appellant. He explained his presence at the spot.
36. Learned counsel submitted that the possibility cannot be ruled out that he was substituted for the real culprit. It was sheer bad luck that he happened to pass that way when the incident took place.
37. We have also heard learned counsel appearing on behalf of the State. He supported the impugned judgment and contended that the prosecution has proved its case beyond doubt. The appellant has been rightly convicted and sentenced to death: .
38. There is discrepancy about the firing. In the F.I.R. It is stated that Riaz-ul-Haq was hit while he was inside the house. Before the trial Court Mst. Firdaus deposed that her husband was hit while he was in the street. We have noted this discrepancy. It is admitted principle of law that the F.I.R. Is not the substantive piece of evidence. The purpose of such report is to put criminal law into motion at the earliest. It can be used by defence for confrontation with the statement on oath by the maker at the time a trial. Final inference is to be drawn by comparing the F I R with the rest of the relevant evidence in that sequence. In this connection the Court is to consider the type and nature of the discrepancy. If it is so material that it demolishes the entire prosecution story then its credit must go the defence but if it is of minor type then it has to. Be ignored in the light of the rest of the relevant evidence.
39. Mst. Firdaus Begum told the Court what she saw when she were up, what happened thereafter till her husband was shot and he asked her to be removed to the hospital as he had been hit in the chest.
40. It would be too much to expect 'from her to give a computer like version.
41. She had just got up when she saw a stranger in the house. Her husband was grappling with the trespasser who started firing. So the discrepancy in the evidence of Mst. Firdaus is not so serious as to reject not only her testimony on oath but also that of the other eye-witness, namely, Shafqat.
42. There is nothing on the record against the appellant and to implicate him for the murder of her husband. It is established that she is a truthful witness because she had admitted that on search, she found that nothing had been stolen. If at all, she was to falsely depose she could easily make it a case of dacoity-cum-murder. We are, therefore, not prepared to disbelieve her.
43. Similarly, Shafqat is an independent witness. He too had no reason to depose against the appellant. Why should he be disbelieved? He corroborated Mst. Firdaus that Riaz-ul-Haq was shot dean by the appellant while he was in the street.
44. With regard to the contention of the learned counsel that the elations of the brothers were strained, the only documentary evidence which has beer, placed on record is that of civil litigation between the brothers. It so appears that the brothers were not getting on well in heir business. So Riaz-ul-Haq thought of being on his own. His father accordingly gave him rupees four lac.
45. Similarly we do not think that simply because the deceased had filed a suit for ejectment against his father and brothers, his brothers/ parents would go to the extent of killing him.
46. Mubarik Ali, real brother of the deceased appeared before the trial Court. He identified the dead body of his brother. He was the test person to depose about the relations of the family. No question was put to him about the strained relations of his family members. Hence, the contention of the counsel for the appellant that the deceased was killed due to unhappy relations between the brothers stands repelled.
47. The rest of the submissions pertaining to the cutting of wiregauze and that the deceased told his were that he knew his assailants do not advance the appellant's case any further.
48. Now we proceed to consider the last contention of the learned counsel that the appellant was falsely roped in while he was passing that way.
49. We have considered this aspect seriously and tried to examine it from all angles. Was it possible that the appellant was detained as stated by him and the real culprit managed to escape?
50. After due consideration, we are of the view that it is a far fetched idea. It appears to be an after thought. If at all the appellant was, detained and had been falsely implicated he would have left no stone unturned to prove his innocence. He could have approached the higher police authorities and have taken all the necessary steps to prove that he was innocent.
51. The least the appellant could do was to lead evidence before the trial Court to show as to what time he signed on and what time he signed of from the factory. This would have given us some idea as to when his duty hours started and when he finished his shift and whether it was possible for him to be present at the spot at the time of occurrence. No evidence has been led to this effect.
52. The appellant was arrested at the spot. He person which is an important piece of evidence to establish his From him revolver was taken into possession. A dagger recovered. What more was required?
53. We are, therefore, left with no option but to prosecution has proved its case beyond reasonable doubt. Hence, the appeal is dismissed and sentence of death is confirmed.