KHALIL-UR-REHMAN RAMDAY, J.--- One Ashiq Hussain alias Muhammad Ashraf son of Rehmat Ali was tried by the learned Sessions Judge of Okara for the murder of one Khalid Hussain.
2. Through a judgment, dated 28-6-1989 passed by the said learned Court, the said Ashiq Hussain was found guilty of the charge and having been convicted under section 302, P.P.C., was sentenced to suffer death and to pay a fine of Rs.10,000 or to undergo two years' R.I. In default of payment of the said fine. The amount of this fine was directed to be paid to the heirs of the deceased.
3. Murder Reference No.142 of 1989 seeks confirmation of the sentence of death awarded to Ashiq Hussain alias Ashraf who, in turn, challenges the above-mentioned conviction and the sentences recorded against him through Criminal Appeal No.51/J of 1989.
4. Muhammad Hussain complainant has filed Criminal Revision No.406 of 1989 and prays for enhancement of the amount of compensation directed to be paid by the convict to the heirs of the deceased.
5. All these matters are being disposed of together through this single judgment.
6. Muhammad Hussain complainant who is the father of Khalid deceased, had claimed through F.I.R. No.361/103 (Exh.P.C.) which had been recorded at Police Station Saddar Okara on 26-12-1988 at 5-15 p.m. That he Was a resident of Chak No.45/3-R falling within the area of Police Station Cantt.
Okara and was a labourer by profession and that about 3/4 years earlier he had purchased a plot measuring about twelve Marlas situate in the Nai Abadi of Chak No.39/3-R from Mushtaq and Zulfiqar for a consideration of Rs.21,600. He had stated that the said Mushtaq and Zulfiqar had, in turn, purchased this plot from one Liaqat son of Rehmat.
7. The complainant had further alleged that the aforementioned Mushtaq and Zulfiqar had executed a deed on 13-4-1988 regarding the sale of the plot in question to him and that they had even surrendered the possession of the same to the complainant.
8. The complainant had reported that when he started filling the said plot with earth, one Muhammad Ashraf son of Rehmat Ali who was a real brother of Liaqat Ali above-mentioned stopped the complainant from filling earth in the said plot and even interfered with the complainant's possession of the same.
9. The complainant further stated that he complained about the conduct of the said Muhammad Ashraf to Muhammad Siddique Wahla who advised him to pay a sum of Rs.3,000 to the said Muhammad Ashraf which he accordingly did through the said Muhammad Siddique and that thereafter when the complainant started constructing the boundary wall around the said plot, the said Ashraf again intervened and stopped the complainant from constructing the said wall. The complainant one again approached the aforementioned Muhammad Siddique Wahla who alongwith the said Ashraf demanded that the complainant should surrender three Marlas of land out of this plot to them. The complainant again obliged and thereafter one again started the construction of the boundary wall about 4/5 days prior to the occurrence which he could not complete because of rain.
10. The complainant had further disclosed that on the day of occurrence i.e. On 26-12-1988 he went to the said plot at about 4-00 p.m. Alongwith his son Khalid deceased and his brother Mushtaq Ahmad (given up) for the purposes of completing the boundary wall but saw that the boundary already raised by him had been demolished. At this point one Khushi Muhammad (P.W.8) also came to be present at the said place and in the meantime the above-mentioned Ashraf son of Rehmat who was armed with a .32 bore pistol emerged from his house and raised a Lalkara to teach the complainant party a lesson for erecting wall around the plot in question and thereafter fired two shots which hit Khalid deceased who fell down whereafter the said Ashraf accused left the place of occurrence.
11. The complainant alleged that his son Khalid deceased succumbed, at the very spot, to the injuries inflicted on his person by the said Ashraf.
12. During the course of investigation Ashiq alias Ashraf accused appeared before Muhammad Sharif Inspector/S.H.O. (P.W.9) on 31-12-1988 and after offering his arrest even produced his licensed revolver (P.1) before him alongwith his licence which was seized vide memo. Exh.P.D.
13. When confronted with the prosecution case, Ashiq Hussain alias Ashraf accused pleaded that Muhammad Hussain complainant was claiming a piece of land which was in fact State land and had been in possession of Liaqat who is a brother of Ashiq alias Ashraf accused for a long time. He had claimed that the said Liaqat could not sell the said land which was located on the Pacca Road leading to Noor Shah from Okara.
14. He had further claimed that on the day of occurrence, Khalid deceased tried to take forcible possession of the said piece of land after sunset which attempt was resisted by the aforesaid Liaqat and his servants which resulted in exchange of fire between the parties during which process Khalid deceased received injuries on his porson and lost his life.
15. The accused had further pleaded that he was not present at the place of occurrence at, the relevant time nor had he participated in the said occurrence.
16. It may be mentioned here that the appellant refused to make a statement on oath and also declined to produce any evidence in his defence.
17. Consequently, there is nothing on record to substantiate the appellant's claim that the land in question was State land or that it was his brother Liaqat who had been and still was in possession of the land in question.
18. This unsubstantiated defence claim becomes further unreasonable when the defence plea suggests that in spite of the fact that the dispute of the land in question existed between the complainant and a brother of the appellant and in spite of the fact that it was the said brother of the appellant who had indulged in exchange of fire with the complainant alongwith his servant which exercise had resulted in the death of the complainant's son, the complainant chose to let the said brother of the appellant, namely, Liaqat add his alleged companions go escort free and instead falsely substituted for them the present appellant who had nothing to do with the land or the dispute in question.
19. From this defence plea, it would be noticed that the appellant admitted the prosecution claim regarding the occurrence having resulted from the dispute over a piece of land which was originally owned by the appellant's brother, namely, Liaqat.
20. The appellant has not been able to demonstrate any ill-will or animosity on the part of either the complainant or Khushi. Muhammad P.W. Which could have prompted them to let the said Liaqat and his alleged companions who had not only interfered with the complainant's possession of the land in question but had even caused the death of the complainant's son, go escort free and to have instead falsely substituted Ashiq alias Ashraf appellant who had allegedly nothing to do either with the appellant in question or with the murder of Khalid deceased.
21. No reason exists on record to disbelieve the two eye-witnesses. It is true that Muhammad Hussain complainant is the father of the deceased but that by itself is not sufficient to discard his testimony which otherwise inspires confidence and more so when he had no axe to grind through false implication of the present appellant.
22. It is true that Khushi Muhammad P.W. Is not a resident of the vicinity of the place of occurrence but in view of the fact that the defence had failed to demonstrate any interest on his part in having the appellant hanged and also in view of the fact that his statement was being corroborated by the complainant (P.W.9), it is not possible to reject his testimony.
23. Our examination of the evidence on record leads us to believe Muhammad Hussain complainant whose testimony is although by itself 8 sufficient to sustain the finding of guilt recorded against the appellant yet in support of whose testimony we have the statement of Khushi Muhammad (P.W.8).
24. Consequently, we find that the prosecution had successfully proved the guilt of Ashiq Hussain alias Muhammad Ashraf appellant and no exception can be taken to such a finding recorded by the learned trial Court.
25. The, appellant's conviction under section 302, P.P.C. Is, therefore, maintained.
26. Nothing exists on record which could mitigate the gravity of the offence committed by the appellant who was guided only by his greed and material lust.
27. Thus the sentence of death awarded to the appellant by the-learned trial Court is CONFIRMED.
28. Murder Reference No.142 of 1989 - is answered in the affirmative. Criminal Appeal No.51/J of 1989 is dismissed and for above-noticed reasons Criminal Revision No.406 of 1989 is also dismissed.