Shafiq-ur-Rehman's (30) was tried by Additional Sessions Judge, Gujrat, for having murdered Muhammad Riaz on 8-4-1987 at 2-30 p.m. In the playground of Government High School, Parhianwali, at a distance of 1-1/2 miles from Police Station Parhianwali. Learned trial Judge convicted him under section 302, P.P.C. Vide judgment dated 10-10-1988 and sentenced him to imprisonment for life plus to pay a fine of Rs.20,000 in default whereof to undergo R.I. For six months.
He was also directed to pay a sum of Rs.25,000 as compensation to the heirs of the deceased, in default whereof to R.I. For six months.
The convict has filed appeal. The complainant has filed a revision petition wherein a prayer has been made for enhancement of sentence from imprisonment for life to death. Both the matters are being disposed of together.
2. F.I.R. Exh. P.D. Was recorded at the police station by Abdul Hamid S.I. (P.W.6) on 8-4-1987 at 3-12 p.m. On the statement of Muhammad Azam (P.W.3).
According to the F.I.R., the complainant was returning home. When he reached near Government High School, Parhianwali, his sons Muhammad Nasim Akhtar and Muhammad Javed riding a motorcycle joined him from behind while coming from the side of Adda Parhianwali. Shafiq-ur- Rahman appellant armed with a gun also came to the ground of the school. Muhammad Riaz deceased son of the complainant was already standing there. Shafiq-ur-Rahman demanded a sum of Rs.500 from Muhammad Riaz, which he had given to him on loan. Muhammad Riaz promised to return the amount. However, a quarrel took place and they exchanged hot words.
Muhammad Riaz quietly started towards his house. Shafiq-ur-Rahman fired a shot from his gun, which struck Riaz on the back side near the right flank. He fell down and died.
For motive for the occurrence, it is stated that the accused murdered the deceased on the latter having failed to return the loan. The occurrence, apart from the complainant, was seen by his sons Muhammad Nasim Akhtar and Muhammad Javed.
3. Abdul Hamid S.I. After recording the F.I.R. Went to the spot and despatched the dead body for post-mortem examination after preparing inquest report Exh. P.H. And inquest report Exh. P.J.
Blood-stained earth was also picked up by him vide memo Exh. P.C. As the accused had avoided arrest, S.I. Moved application Exh. P.L. For proceeding under section 87/88, Cr.P.C. And got issued proclamation Exh. P.M. The accused was arrested by him on 2-5-1987. Licensed gun P.1 alongwith live cartridges P2 and P3 being carried by the accused at the time of arrest were taken into possession vide Exh. P.B. After completion of necessary investigation, challan was submitted to Court.
4. Statements of 9 P.Ws. Were recorded at the trial.
Dr. Nazir Ahmad Anwar, who had performed autopsy on 8-4-1987 at 5-37 p.m. Appeared as P.W.1.
He had noted the following injury on the body of the deceased:- (1)A fire-arm wound of inlet 3 x 3 c.m. Going into chest over right side of back of chest, on dissection right lung upper surface of liver and right ventricle of heart were found perforated. Pieces of nilon type of wad were recovered from right ventricle of heart. 20 pellets of S.G. Type were recovered from the chest. About 3 points of blood could be mopped up from the chest.
The shirt had a corresponding hole.
Stomach contained about four ounces of digested food.
Death was opined to have occurred due to haemorrhage and shock resulting from the injury noted above caused by a fire-arm. Time between injury and death was opined to be immediate while the time between death and post---mortem was opined be within two to four hours. During cross- examination he stated that there was no tatooing, blackening or searching marks around the injury. He stated that the injury appeared to have been inflicted from a distance beyond four feet.
He admitted that the pellets had entered the body en mass.
5. The ocular account was deposed to by Muhammad Azam (P.W.3) and Muhammad Nasim Akhtar (P.W.4).
Muhammad Azam while narrating the facts given by him in the F.I.R. Stated that the deceased on being asked by the appellant to pay the loan had told him that he was not carrying the money with him and that he would pay him in the village, During cross-examination, he stated that his son Nasim Akhtar was employed as a Cashier in National Bank, Marala, which was 6/7 miles away and that he was returning from Adda where he had gone to inquire about the progress of the repair of the thresher which he had given to the mechanic seven days prior to the occurrence. He denied the suggestion that neither he nor his sons including Nasim Akhtar witnessed the occurrence, and that, in fact, he was informed by others and his cousin Ch. Muhammad Shaft had taken the deceased in injured condition to the hospital in a jeep where he died. According to him, school time was 7 to 12 and at the time of the occurrence no school boy was playing in the ground. He denied the suggestion that there was any shop or house near the place of occurrence. He admitted that the accused was employed as a clerk in Khushab. He denied the suggestion that appellant was on leave on the day of occurrence. He clarified that he was absent from duty. According to him, the loan had been obtained by the deceased 4/5 months prior to the occurrence. While admitting that the deceased had been challaned once under section 307, P.P.C., he denied that the deceased was quarrelsome and was challaned in other cases as well. The suggestion that the deceased was rusticated from the school while being a student of 8th and 10th class was denied by him.
According to him, the deceased had passed Intermediate and was a candidate for the post of A.S.I.
He denied that the deceased was a gambler and drunkard. He admitted that the house of the accused was adjacent to his house and only a wall intervened. He admitted the fact that his were was the paternal-aunt of the father of the accused. The suggestion that the deceased had abused the accused and had tried to snatch the gun from him and during this process the gun was accidentally fired was denied by him.
Muhammad Nasim Akhtar (P.W.4) while corroborating the statement of his father also claimed to have witnessed the arrest of the accused and the recovery of licensed gun P.1 alongwith cartridges P.2 and P.3 from him. During cross-examination, he stated that he was employed in National Bank at Marala and had witnessed the occurrence while returning from there. He admitted that the Bank closed at 4-30 p.m. And that he had not left the bank after having submitted any application for short leave. He gave the distance of Marala from the spot as 30 kilometres. According to him, the deceased had gone to playground to play cricket. According to him, the dead body was despatched from the spot for post-mortem at 4-00 p.m. He admitted that Muhammad Shafi his uncle was a retired Government Servant and was Vice-Chairman of the Usher and Zakat Committee and that his uncle Ch. Faiz Ahmad was an M.P.A. And a Parliamentary Secretary. He denied the suggestion that the occurrence had taken place all of a sudden without pre-thinking and that they had set up a false case under the influence of their relatives. He admitted that the deceased and the appellant had exchanged hot words before firing.
6. Asif Javed, Constable (P.W.5) stated that he had been entrusted Exh. P.F. Warrant of Arrest of Shafiq-ur-Rehman's on 22-4-1987 but he had failed to execute that due to non-availability of the accused. He made report Exh.P.F./1 on the warrant. During cross-examination, he stated that no warrant of proclamation was entrusted to him after Exh. P.F. He expressed ignorance about the posting of the accused at Dairy Farm in Khushab. He admitted that he had not gone there.
7. Abdul Hamid S.I., who had registered the case submitted the challan to Court after arresting the accused and completion of investigation, appeared as P.W.6 and gave the details of the investigation. During cross-.Examination, he admitted that the accused was posted as a clerk in Dairy Farm in Khushab. He denied the suggestion that he had drafted the F.I.R. After preliminary investigation at the spot. He admitted that some persons appeared before him and claimed to be eye-witnesses but he had not cited them as witnesses. The statements of the remaining witnesses are more or less of formal nature.
8. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. While denying that the police had taken into possession his gun at the time of arrest on 2-5-1987, he claimed the ownership of the gun. He declined to make statement on oath. However, he examined in defence Dr. Riaz Ahmad Gondal, Medical Officer Parhianwali as D.W.1. Dr. Riaz Ahmad stated that the dead body had been brought to him at Rural Health Centre, Parhianwali, by Ch. Muhammad Shafi, in a jeep and the police had taken away the dead body to Phalia Hospital because he was not competent to perform post-mortem examination. During cross-examination, he expressed ignorance about the accused being related to his relative, Ch. Muhammad Ashraf, Ex-M.P.A. From Parhianwali. He stated that he had not made any entry in the register about the arrival of the dead body or the visit of the police.
9. Learned counsel for the appellant after having taken me through the evidence, criticised the impugned judgment and contended that the eye-witnesses, in this case, were related; that they do not seem to have witnessed the occurrence; that in spite of the occurrence having taken place at the public place, no independent witness was produced; and that there was no corroborative evidence of the ocular account.
Learned counsel for the State/Complainant defended the judgment of the trial Court and contended that the eye-witnesses although are related yet they were not inimical to the appellant; that the ocular account furnished by unbiased witnesses finds corroboration from the evidence of motive and the evidence of abscondence of the appellant after the occurrence. Learned counsel contended that it is apparent from the suggestions put to both the eye-witnesses during cross- examination that the appellant had come into confrontation with the deceased at the time of occurrence which in turn establishes his presence at the spot.
Learned counsel for the petitioner in the revision petition contended that the respondent (appellant) had committed the murder in a gruesome manner and so he did not deserve the concession of lesser sentence, as such, his sentence should be enhanced to death.
10. The appellant and the deceased were living in adjoining houses. In fact, only a wall intervened between them. Apart from other connections, Mst. Sharif Begum, paternal-aunt of the father of appellant was were of the complainant (mother of the deceased). '
It is also worth noticing that even though the appellant was serving as a clerk at Khushab but he had come home on leave. The same is apparent from the cross-examination of Muhammad Azam P.W.3. Yet the other important aspect on the record is that a suggestion was put to the father of the deceased (P.W.3) during cross-examination that, `the deceased had abused the accused and tried to snatch the gun of the accused and gun opened fire accidentally in the process'.
Notwithstanding the fact that the import of the suggestion was denied but the fact remains that it was the case of the accused (appellant) that he was with the deceased at the relevant time armed with a gun and some sort of quarrel and grappling had taken place. The suggestion when examined as a defence falls flat as the deceased could not have suffered injury with a gun on the back while grappling with the appellant. In that process one can suffer injury on any frontal part of the body but one cannot suffer injury on the back from a shot of a gun. P.W.4 was also suggested during cross-examination that the occurrence had taken place all of a sudden without pre- thinking. Such a position leaves a lot of room to draw inference that even according to the defence the occurrence had happened between the deceased and the accused.
11. The stance of the defence brought on the record through statement of D.W.1 that the dead body of the deceased was brought to the Rural Health Centre by Muhammad Shafi, a relative of the deceased, does not advance the case of the appellant in any manner. Firstly, the statement of the doctor does not inspire confidence because admittedly he had not made any entry of the dead body having been brought to the Rural Health Centre and, secondly, if Muhammad Shafi was a retired Gazetted Officer there would have been no need for him to carry the dead body to the Health Centre because being an educated person he could have seen that the boy had already expired. Last of all, even if the dead body was taken by him to the Health Centre, how does it affect the prosecution version? All that can be argued, is, that non-accompanying of both of them should be taken to mean that they were not present at the time of occurrence. I am afraid it cannot be taken to the extremety, because if the deceased was removed in that state in a jeep there would have been no space for others in the jeep.
12. P.W.3 gave quite a plausible account for being present near the spot. He was thoroughly cross- examined to prove that he could not have been at the spot at the time of occurrence, which he effectively retorted.
Although the argument of the learned counsel for the appellant that Muhammad Nasim Akhtar being a Cashier in the National Bank at Marala, at a distance of 30 kilometres could not have been at the spot at 2-30 p.m. As the bank closed at 4-30 p.m. Appears to be attractive but when examined in the surrounding circumstances, the same also does not stand. It is common knowledge that office timing in such institutions are not observed in villages. The possibility of Muhammad Nasim Akhtar having returned some time earlier than the closing hours of the bank cannot be ruled out in the prevailing practices. His statement, therefore, also cannot be ruled out of consideration.
1 13. No doubt, the occurrence had taken place in the playground of the school but nothing has been brought on the record to show that the school had not been closed by that time. In fact, it has come on record that the school used to close at 12 noon. In such circumstances, question of non- production of independent witness also does not pose a serious query.
14. The ocular account not only finds support from the evidence of motive and the medical evidence but also stands corroborated by the conduct of the accused.
As noted above, the accused was residing in the adjacent house of the deceased. He was related to the deceased also. The case was registered at the police station situated in the same town. The appellant, therefore, must have come to know that a case has been registered against him.
Instead of surrendering to the police, he avoided arrest. So much so that the Investigating Officer had to obtain the warrants of his arrest. On failure of the same, proceedings under section 87/88, Cr.P.C. Were initiated. In fact, proclamations were issued. The evidence of such conduct of the appellant therefore, lends corroboration to the ocular account.
15. After having carefully examined the record and applying my mind, I am convinced that the prosecution has been able to prove its case against the appellant beyond reasonable shadows of doubt. The appeal filed by him is, therefore, dismissed.
Learned counsel for the petitioner in the revision petition has not been able to make out a strong case for enhancement of sentence from imprisonment for life awarded to the respondent (appellant) to death. The prayer made in the revision petition for same is, therefore, rejected. The sentence of imprisonment for life awarded to the appellant is maintained. However, the sentence of fine of Rs.20,000 and a direction to pay Rs.25,000, as compensation, in my view, is excessive. The sentence of fine of Rs.20,000 is, therefore, reduced to Rs.10,000 in default whereof he shall, undergo R.I. For one year. The amount of compensation directed to be paid to the heirs of the deceased is reduced to Rs.10,000. For non---payment of which, he will undergo R.I. For six months. The fine on recovery shall also be paid as compensation to the heirs of the deceased.