' Muhammad Iqbal (35) was tried by Additional Sessions Judge, Khushab, for having murdered Muhammad Afzal on 15-3-1989 at 4-30 p.m. In the Verandah of hotel of Kalu Machhi at Bus Adda Panja, at a distance of 3 miles from Police Station Mitha Tiwana.
' Vide judgment dated 13-9-1990, he was convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs,10,000 in default whereof to undergo R.I. For one year. Whole of the fine, on realization, was directed to be paid as compensation to the heirs of the deceased.
2. The convict has filed appeal.
3. F.I.R. Exh.P.D. Was registered at the police station by Muhammad Nawaz S.H.O. (P.W.13) on 15-3- 1989 at 5-15 p.m. On the statement of Muhammad Ashraf P.W.7.
' According to F.I.R., the complainant was sitting on a bench in the Verandah of the hotel of Kalu Machhi alongwith Muhammad Afzal deceased, Sultan Ali and Mehr All P.Ws. For taking tea. It was 4- 30 p.m. A lorry belonging to Tubassam Bus Service came there. Muhammad Iqbal who was driving the bus came down and saw Muhammad Afzal sitting at the hotel. He went towards his house and returned shortly thereafter armed with a gun. After giving a Lalkara that he had come there, to avenge the murder of his father, he fired a shot at Muhammad Iqbal while he was in the process of getting up. The fire struck him on the left side of the head and he fell down. Muhammad Iqbal reloaded the gun and said loudly that if anybody dared to come near, he will not be safe. Saying so, he went towards his house raising Lalkaras.
' Muhammad Afzal died at the spot. The occurrence, apart from the complainant, was witnessed by Sultan All and Mehr Ali.
' About motive for the occurrence, it is stated therein, that Muhammad Afzal etc. Had murdered Khuda Yar, father of Muhammad Iqbal, 25/26 years ago. They were convicted by the Court of Sessions Judge, Sargodha, and had returned since long after undergoing the sentence. It is alleged that Muhammad lqbal committed the murder of Muhammad Afzal to avenge the murder of his father.
4. Muhammad Nawaz S.H.O. (P.W.13) after registering the case reached the spot and despatched the dead body for post-mortem after preparing necessary papers. He collected blood-stained earth from the spot vide memo. Exh.P.E. And took into possession empty P.5 lying there vide memo.
Exh.P.F. He arrested the accused on 25-3-1989. Licensed gun P.6 produced by Muhammad Iqbal at the time of arrest alongwith licence P.8, three cartridges P.9/1-3 and a bag P.7 were taken into possession by the S.H.O. Vide memo. Exh.P.G. Challan was submitted to Court after completion of necessary investigation.
5. Statements of 13 P.Ws. Were recorded at the trial.
' Dr. Nasir Iqbal Butt, who had performed autopsy on 16-3-1989 at 9-00 a.m. Appeared as P.W.11. He had noted following injuries on the body of the deceased:--
(1) An irregular wound 17 c.m. In length and 9 c.m. In width on the left side of head, 9 c.m. Width was maximum at the centre of the wound. The width narrowed towards both margins of the wound.
Skin muscles and bones were smashed in the arch of the wound and brain matter was coming out through the wound. Skull bones were fractured at many sides. Much of the brain matter was smashed. Four fire-arm projectiles were recovered from the craneal cavity.
(2) A bruise 4 c.m. x 3 c.m. Over the left shoulder.
' During internal examination, skull bone was found fractured at many sides. Four fire-arm projectiles were recovered from the body.
' Death was opined to have occurred due to smashing of brain as a result of injury No,1. Injury No,1 was opined to have been caused by a fire-arm while injury No,2 which was opined to have been caused by a blunt weapon, was declared simple. Probable time between injuries and death was opined to be within few seconds while the time between death and post-mortem was opined to be within 24 hours
6. Ocular account was deposed to by Muhammad Ashraf P.W.7 and Sultan Ali P.W.B.
' Muhammad Ashraf while repeating the facts given by him in the F.I.R., stated that the accused had returned from his house in about 20 minutes, armed with a gun. During cross-examination he admitted that they were having enmity with Muhammad Iqbal since after the death of his father.
According to him their Dera was at a distance of 7-1/2 miles from the place of occurrence. He gave out that `Khatm-e-Qur'an was to take place in the house of Muhammad Afzal deceased and they were going to Mittha Tiwana to purchase sugar and rice from there. He did not deny that there were Kariana shops at Adda Panja also. He disclosed that the appellant was 5/6 years old at the time of murder of his father. He stated that since after the murder of father of the appellant, this was the first occurrence that had taken place between the deceased and the appellant. He stated that Muhammad Akbar brother of the deceased who was challaned for the murder of Khuda Yar, was living at Lahore during the days of occurrence. The suggestion that the deceased had unhappy relations with Mst. Bhaag Bharri his Phoophi and Muhammad Akbar his brother, was denied by him. He also denied the suggestion that the deceased had been bound down for maintaining peace under section 107/151, Cr.P.C. On account of a dispute with Allah Baldish and one Ghulam Ali. He admitted that the deceased was his maternal-uncle as well as maternal-uncle of Sultan Ali. Mehr Ali given up P.W. Was father of Sultan Ali. The suggestion that the deceased had attempted to board the bus of the appellant when he had stopped the same at the bus-stand and that when the appellant had objected to that, the deceased had told him that, certainly he will even get on to his mother also and that it was thereafter that the appellant had fired a shot at the deceased under grave and sudden provocation with his licensed gun, which was in his possession, was denied by him.
7. Sultan Ali P.W.8 corroborated the statement made by P.W.7. During cross-examination he stated that Afzal deceased was released in the case of Khuda Yar after about 3 months. He gave out that they were sitting very close to each other alongwith the deceased when he was fired at, but neither they had suffered any injury nor blood had fallen on their clothes. According to him neither blood had fallen on the bench nor any pellet had hit the bench. He denied the suggestion that he was not present at the time of occurrence and that he had made a false statement due to relationship.
8. Ata Muhammad who had witnessed the collection of blood-stained earth and empty frcm the spot, while appearing as P.W.9 stated so. During cross-examination he admitted that there were many shops around the place of occurrence. He denied the suggestion that he had not witnessed the collection of blood-stained earth and empty from the spot.
9. Ghazi, in whose presence the appellant had produced his licensed gun alongwith licence and three cartridges, appeared as P.W.10 and deposed those facts.
10. Muhammad Nawaz Khan, S.H.O. Who had registered the case, conducted investigation, arrested the accused and submitted the challan to Court after completion of investigation, appeared as P.W.13 and deposed those facts. During cross-examination he admitted that the accused on appearance before him had stated that some time prior to the occurrence, the deceased had attempted to board his bus and on his objection, had said that, 'he shall board upon his mother'.
According to him the accused had also stated, that just prior to the occurrence, the deceased had come to him and in a taunting manner asked, as to where the bus was going, and while doing so, had been twisting his moustache also. He further stated that the accused had told him that he had felt insulted on that account. However, he (S.H.O.) denied the suggestion that the accused had stated before him, that the deceased, just before the occurrence, had said that he will board upon his mother and that on account of that he had lost patience, and under provocation had fired at the deceased with his licensed gun. The suggestion that he had given an incorrect answer about the sudden provocation, in order to strengthen the prosecution case, was denied by him.
11. Positive reports Exhs.P.L. And P.M. From the offices of the Chemical Examiner and the Serologist were tendered in evidence. Report Exh.P.N. From the office of the Superintendent of Police (Technical Services) was also tendered in evidence. According to the said report the empty collected from the spot was not found to have been fired from the gun, taken into possession from the appellant.
' The statements of the remaining P.Ws. Are more or less of a formal nature.
12. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. While answering questions about production of his gun alongwith licence and cartridges, he stated that the police had taken the same from his house of their own and then planted the same upon him. He produced in defence Kalandaras Exhs.D.B. And D.C., a copy of mutation Exh.D.D. And a certificate Exh.D.E. However, he declined to make statement on oath. While doing so, he added that he was father of six minor children and that he may be acquitted.
13. Learned counsel for the appellant after having taken me through the evidence, criticised the impugned judgment and contended that the eyewitnesses do not appear to have witnessed the occurrence; that negative report Exh.P.N. From the office of the Superintendent of Police (Technical Services) is a proof of the fact that the licensed gun of the appellant which was taken into possession during the investigation, had not been used for the crime. Learned counsel argued that the version putforth by the appellant during the trial, by way of suggestions to the complainant and the Investigating Officer, appears to be more probable and nearer the truth, in that he particularly highlighted the fact that it was impossible to believe that the appellant could have left the bus that he was supposed to drive upto Chak Nos.26 and 27 and beyond that, at the Adda, with passengers sitting therein, and gone to the village to bring the gun for commission of murder. Learned counsel contended that the passengers also would not have allowed him to do so.
' In support of the contention that the eye-witnesses, in fact, were not there, he referred to the fact, that, had they been sitting on the same bench with the deceased, as deposed to by them, they would have either suffered injuries, as a result of some pellet coming out of the shot, or would have at least got their clothes stained with blood, oozing out of the wound of the deceased. In that connection, learned counsel also pointed out that the bench on which the deceased and the P.Ws.
Were sitting, was also not found stained with blood.
' Learned counsel for the appellant submitted that motive mentioned for the occurrence, was too old to lend provocation to commit the murder.
14. Learned counsel for the State defended the judgment of the trial Court and contended that the eye-witnesses had given plausible explanation for being with the deceased at the time of occurrence, and that prompt lodging of the F.I.R. Was a fact which lent complete support to their claim. Learned counsel contended that the version put forth by the appellant was not worth placing reliance upon as there was nothing tangible on record in support of the same. Learned counsel submitted that the appellant had never denied that his (appellant's) father was murdered and the deceased was tried in that case alongwith his brother and others.
15. It is not appellant's case that the deceased had not been done to death at bus stand Panja. He never denied that the deceased had not bee a tried alongwith his brother Muhammad Akbar and others, for the murder of his (appellant's) father, or that all the accused alongwith the deceased were acquitted. The only fact which requires consideration is, whether the murder of father of the appellant which had taken place 25 years ago, could have become motive for this occurrence?
16. No doubt, it is on record that no occurrence had taken place between the parties since after the murder of father of the appellant, but it is also on record that during the period that had passed, the appellant was a minor and of tender age. He was admittedly only 5-6 years old at the time of murder of his father. He could not have avenged the murder till he had grown up. The observation of learned trial Judge that in that part of our country, people take revenge of their father or near ones, even after long time, is not easily rebuttable.
In the circumstances, the contention of learned counsel for the appellant cannot be given any weight that the motive alleged for the occurrence A was too old to have prompted the appellant to commit the murder.
17. The version put forth by the appellant during cross-examination of complainant PN3 and Investigating Officer P.W.13, has been considered by me minutely in the light of the evidence on record and the contentions raised by learned counsel.
' The argument of learned counsel for the appellant that it was improbable rather impossible to believe that the appellant could have gone to his house leaving the passengers sitting in his bus which he was supposed to drive upto Chak Nos.26 and 27 and further, appeared to be attractive, and the claim of the eye-witnesses that the appellant on having seen the deceased sitting in the Verandah, had gone to his house and fired at him after bringing the gun from there, looked to be little bit doubtful However, on examination of Urdu version of the statement of the Investigating Officer, the whole thing fell flat because according to Urdu version the suggestion of the appellant to the Investigating Officer was, that after feeling insulted and aggrieved due to the taunting manner of the deceased, he (appellant) had gone to his house, brought the gun from there and fired at the deceased. If it was appellant's own case that the gun with which he had fired, was brought by him from his house, and he had gone to bring the same leaving his bus with passengers sitting therein, at the Adda, how could the statement of the eye-witnesses be considered improbable or doubtful in that regard?
The stance of the appellant, that, when he had stopped the deceased from boarding his bus, he had said tauntingly that he will board upon his mother also and while doing so, he had twisted his moustache, which was insulting and so had provoked him, does not find, support from anything on record. There is nothing tangible on record to act upon that stance. Had such a thing happened and had the appellant felt so insulted and provoked, he could not have .Stopped himself from acting forthwith. If he was having such a sound mind, that he had considered it more advisable, first to go to his house and bring the weapon from there, he could well have restrained from acting in a manner resulting in the murder of the deceased and himself landing in trouble.
' It is also worth noticing that the appellant did not adduce any evidence in support of that plea. He did not even put up that version, while making statement under section 342, Cr.P.C. He declined to avail the opportunity of putting up the said version, by making statement on oath under section 340(2), Cr.P.C. The fact that he did not advert to do so, while making statement under section 342, Cr.P.C. Nor did he avail the provisions of section 340(2), Cr.P.C. Shows that he himself had no faith in the version being put forth on his behalf during cross-examination. The same is, therefore, rejected, as not worth acting upon.
18. The argument of learned counsel for the appellant that presence of the eye-witnesses was very doubtful as they admittedly were residing at a distance of about 7 miles from the place of occurrence and the reason given by them to have been at the spot, was also not confidence inspiring, does not possess substance. Both the witnesses explained that the deceased was planning to hold Majlis of `Khatm-e-Quean' and they were accompanying him for going to Mittha Tiwana to purchase rice and suger etc. From there.
' Both the eye-witnesses were sons of sisters of the deceased. Their accompanying their maternal- uncle for such a purpose, was not unbecoming, in any manner.
19. The argument that the articles could have been purchased from Adda Panja, does not help the defence in any manner, because even if they were not required to go to Mittha Tiwana for that purpose on account of the fact that such articles could have been purchased from some shop at Adda Panja, their being with the deceased at Adda Panja, stands amply explained.
20. The contention that as they were not found injured even by a stray pellet, nor their clothes were found stained with blood, showed that they were not at the spot, is also without any force. The deceased had suffered the injury when he had got up from the bench. The shot had struck him on the head. The pellets could not have struck the persons sitting on the bench. The shot appears to have been fired from a close range as 4 projectiles were recovered from within the body. The witnesses would have moved away simultaneously with the firing of shot. As such there would have been no chance for the blood to fall upon them. Moreover, the deceased had fallen on the ground.
21. Yet another aspect of the matter, is, that the F.I.R. Was lodged promptly, i,e. Within 45 minutes, at the police station which was at a distance of 3 miles. Had the complainant and the other witness not been at the spot, or their presence was to be procured from the village which was at a distance of 7 miles, the F.I.R. Could not have been lodged at the police station, at the alleged time.
22. The argument that since the empty recovered from the spot had not matched with the licensed gun taken into possession from the appellant, so it should be assumed that it was not the appellant, rather it was someone else who had done the deceased to death, in my view is misplaced. In that, the complainants never claimed that the appellant had committed the murder with his licensed gun. All that, they stated, was, that he fired at the deceased with a .12 bore gun.
Even if it is to be assumed positively that the said report came forth without any type of tampering, at any level or stage, it cannot be ruled out, that the appellant had used some other gun.
After having considered all aspects of the matter, in the light of the evidence on record, and careful sifting of the evidence, I am convinced that the prosecution has been able to prove the case against the appellant beyond reasonable shadows of doubt. There is no merit in the appeal. The same is dismissed.