MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--Appellant namely Naeem Dar son of Muhammad Sharif was tried by the learned Special Judge, Suppression of Terrorist Activities Act, 1975 for the murder of one Tanvir Akhtar in case F.I.R. No,134 of 1995 dated 30-9-1995 under section 302, P.P.C. registered at Police Station City Jalalpur Jattan, District Gujrat, who vide judgment dated 10-12-1997 convicted and sentenced the appellant under section 302, P.P.C. to death as well as to pay Rs,2,00,000 (Rupees two lacs) as fine or in default of payment whereof to further undergo two years R.I. The amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
2. Being aggrieved by the conviction and sentence, appellant filed instant criminal appeal.
3. The case of prosecution as set up in the F.1.R. is that one Mirza Anwar Baig, P.W.-1/complainant, was running a business of furniture having a show room at Danewal Road in Jalalpur Jatan. On 30- 9-1995 at about 5-30 p.m., one Azhar Hayat came to his shop and told him that his wife had fallen ill whereupon the complainant alongwith Azhar Hayat, Shoaib Mirza P.W.2 and Tanvir Akhtar (deceased) proceeded to the house of said Azher Hayat. Statedly, Tanvir Akhter deceased was a few paces ahead. When they reached near Mehboob Furniture Shop, they found Naeem Dar (appellant) standing with 222-bore rifle. Statedly, the appellant raised Lalkara that Tanvir Akhter deceased would not be spared and thereafter made successive tires from his 222-bore rifle hitting Tanvir Akhter deceased on the chest, left cheek and back. Statedly, the appellant also threatened that if anybody came near him, he would be treated in the same manner. Thereafter, the appellant while raising alarm decamped from the scene of crime. The injured was removed to Aziz Bhatti Shaheed Hospital where he succumbed to the injuries.
The motive behind this occurrence as narrated in the F.I.R. is that the deceased had a quarrel with the appellant two days prior to the registration of this case on some political issue. Statedly, deceased was supporter of Ch. Azher Hayat President of People's Youth Gujrat whereas the appellant belonged to Muslim League Group.
4. Upon receiving information about this occurrence, Muhammad Amin Inspector/P.W.10 reached at the hospital and recorded the statement, Exh. PA, of Mirza Anwar Baig,P.W.1/complainant, on the basis of which formal F.I.R., Exh. PA71, was entered at the police station. The said police officer also inspected the dead body and after preparing necessary documents sent the same to the mortuary for post-mortem examination. Thereafter, he visited the spot and during spot inspection, collected blood-stained earth vide recovery memo, Exh.PB and also prepared rough site-plan, Exh.PJ. The Investigaing Officer also got prepared scaled site-plan, Exh. PD and Exh.PD/1, of the place of occurrence through draftsman. Since the accused/appellant could not be traced, the Investigating Officer obtained his warrants of arrest from the concerned Ilaqa Magistrate but the same could not be got executed thus a proclamation under section 87, Cr.P.C. (Exh.PE) was got issued through Illaqa Magistrate and the same was entrusted to Muhammad Afzaal, F.C./P.W.6 for its execution. In spite of issuance of proclamation, accused/appellant did not appear before the police officer or before the Court thus after preparing incomplete challan under section 512, Cr.P.C the Investigating Officer submitted the same before the Court.
This case was also partly investigated by Abdul Waheed, S.I. Range Crime Gujranwala/P.W.12.
During his investigation, appellant was arrested on 17-8-1996 and on 21-8-1996 appellant led to the recovery of 222-bore rifle (P-1) from his residential house and the same was taken into custody vide recovery memo. Exh.PC. After complying with all legal formalities, said police officer submitted challan before the trial Court.
5. During the trial, prosecution produced twelve witnesses in order to prove the charge against the appellant. Mirza Anwar Baig,P.W. I / complainant, and Shoaib Mirza, P.W.2, being eye-witnesses of the occurrence narrated the circumstances under which appellant committed the murder of Tanvir Akhter. Both the said eye-witnesses had supported the prosectuion case in verbatim. Sarwar Baig, P.W.3 identified the dead body at the time of occurrence. This witness was also present when the recovery of 222-bore rifle was effected at the instance of the appellant which was secured vide recovery memo. Exh. PC. Akhter Naqash draftsman/P.W.4, prepared scaled site- plan Exh.PD and Exh.PD/1 of the place of occurrence. , Muhammad Siddique, F.C/P.W.5 took the rifle P-1 to the office of Forensic Science Laboratory and delivered the same intact. Muhammad Afzaal, F.C/P.W.6, was deputed to execute the proclamation (Exh.PE) who after complying with all legal formalites made report Exh.PE/1). Muhammad Akhter, H C /P.W.7 kept the parcels (case property) in the Malkhana for safe custody.
Dr. Nusrat Riaz, P.W.8 conducted post-mortemexamination on the dead body of Tanvir Akhter deceased and observed following injuries on his person:-
(1) A grooved type of wound with lacerated margins at lower border of right side of face measuring 8 x 2 c.m. and muscle deep.
(2) A rounded 1/2 c.m. square wound with lacerated and inverted margins at upper part of front of right side of chest.
(3) A rounded 2 c.m. square wound with lacerated and inverted margin at upper of left side of chest.
(4) A rounded 1 c.m. wound with lacerated and covered margin at the back of middle right side of chest.
(5) A rounded 1 c.m. square wound with lacerated everted margin at lower part of back of left side of chest.
(6) An oval 2.5 x 1.5 c.m. wound with lacerated inverted margins below and lateral to Injury No,5.
(7) A round 2 c.m. square wound with lacerated inverted margin below and medial to Injuries Nos,5 and 6.
(8) A 1/2 c.m. square wound with lacerated inverted margins of lower part of right side of abdomen near midline.
(9) A 2 c.m. square wound with lacerated and everted margin at the outer aspect of left hip.
(10) A 1 c.m. square wound with lacerated inverted margins at lateral aspect of middle of right upper arm.
(11) A 2 c.m. square wound with lacerated everted margins at poster medial aspect of middle of right upper arm.
(12) A 1 c.m. square wound with lacerated inverted margins at outer aspect of left elbow.
(13) A 2 c.m. square wound with lacerated evened margins at medial aspect of left elbow.
(14) A grooved type of wound with lacerated margins at front of lower part of left forearm measuring 5 x 1 c.m. and muscle deep.
In the opinion of the doctor, cause of death in this case was severe haemorrhage and shock leading to the ultimate card ioresp i ratory failure.
Imdad Hussain, ASI/P.W.9 entered formal F.I.R., Exh.PA/1, at the police station and kept the parcels (case property) in the Malkhana for safe custody. Muhammad Amin, Inspector/P.W.10 and Abdul Wahid, S.I./P.W.12 conducted the investigation of this case as narrated in the earlier part of this judgment. Munass Iqbal, F.C./P.W.11, took the dead body to the Mortuary for post-mortem examination and after the same produced last worn clothes before the Investigating Officer which were taken into custody vide recovery memo. Exh.PK.
6. Learned D.A. tendered in evidence report of Chemical Examiner, Exh.PL, and that of Forensic Science Laboratory, Exh.PM and closed the case for the prosecution.
7. Learned trial Court after recording entire prosecution evidence, examined appellant under section 342, Cr.P.C. wherein the appellant while answering to the question "Why this case against you and why P.Ws. have deposed against you, replied as under:- "I have been falsely invovled in this case, as I was on friendly terms with Idrees Butt whose cousin was the actual culprit. The complainant and the police have made me a scape goat being a poor person, The P.Ws. are closely related to the decased."
The appellant neither made any statement under section 340(2), Cr.P.C. nor produced any evidence in his defence.
8. Learned trial .Court after appropriate appraisal of evidence available on record, vide judgment dated 10-12-1997 convicted and sentenced the 'appellant as narrated in the earlier part of this judgment.
9. Learned counsel for the appellant submitted that it was an unseen occurrence and the eye- witnesses were introduced later on just to strengthen the prosecution case; that the presence of the eye-witnesses at the spot was doubtful; that the recovery evidence relied upon by the prosecution was tailored during the investigation; that the motive for the commission of this offence was never established before the trial Court; that on the day of occurrence appellant was at Karachi and the proceedings of proclamation initiated against the appellant were fake in nature. Conversely, learned State counsel while supporting the impugned judgment had vehemently opposed this appeal.
10.Arguments heard. Record perused.
11. It is a case of single accused who allegedly committed the murder of Tanvir Akhter during the day light hour on 30-9-1995 within the area of Police Station City Jalalpur Jatan, District Gujrat. This occurrence was witnessed by Mirza Anwar Baig, P.W.1/complainant, Shoaib Mirza, P.W.2, alongwith Azher (given up witness). Mirza Anwar Baig, P.W.1/complainant, was grand-father of the deceased . whereas Shoaib Mirza was an apprentice on the Show Room of said Mirza Anwar Baig (complainant). At the time of occurrence, eye-witnesses alongwith the deceased were proceeding to the house of Azher whose wife was sick and on the way this occurrence took place. The bare perusal of evidence of both the eyewitnesses shows that they had deposed in natural manner and none of them had either exaggerated the incident nor given version which is inconsistent or contradictory.The stand of both the eye-witnesses is fully supported by the facts, circumstances and medical evidence. It is also established from the record that the matter was reported to the police without any wastage of time. The appellant is named in the F.I.R. with the specific role. In a case of single accused, substitution by the kith and kins of the deceased is a rare phenomenon.
The bare perusal of evidence of both the eye-witnesses shows that not a single question worth the name of enmity of these witnesses qua appellant has been suggested by the defence and there are no circumstances on the record to show that the said witnesses had any motive to falsely implicate the appellant in this case. The statements of both the eyewitnesses inspire-confidence, ring true and can very safely be relied upon to uphold the conviction of the appellant even in the absence of any corroborative piece of evidence.
12. As narrated earlier, it is a case of promptly lodged F.I.R. against a single accused. The promptness in lodging the F .I.R . is yet another circumstance to strengthen the prosecution case and eliminates all possibilities of fabrication and concoction.
The medical evidence also supports the prosecution case, time duration and location of injuries as narrated by the eye-witnesses stand confirmed by this piece of evidence.
13.As far as evidence Of recovery' of crime weapon at the instance of the appellant is concerned, admittedly during the investigation no crime empty was recovered by the police from the spot and there is no report about the use of this weapon during the occurrence. Thus this piece of evidence relied upon by the prosecution being of no value can not be taken into consideration.
14.The motive for this occurrence was the political rivalry between the appellant and the deceased.
Statedly, deceased was supporter of Peoples Party whereas the accused belonged to Muslim League Group. Both of them had quarrel over some political issue two days prior to the instant occurrence. The motive part of the prosecution case stands establish from the statement of Mirza Anwar Baig, P.W.1/complainant. During the cross-examination, not a single question about the quarrel of the deceased with the appellant two days prior to this occurrence, was asked and this part of the prosecution case remained unchallenged. Another factor which had strengthened the prosecution case is that of the abscondence of the appellant. According to the record, this occurrence took place on 30-9-1995 but appellant remained fugitive from law till 17-8-1996 when he was arrested. It is apparent from the record as well as from the statements of Muhammad Afzaal, F.C/P.W.6 and Muhammad Amin, Inspector/P.W.10 that since accused/appellant was not traceable, the Investigating Agency after complying with legal formalities got proclamation. Exh. PE, under section 87, Cr.P.C. against the appellant. The abscondence of the appellant for almost one year goes a long way to prove his guilt as held by their lordships in cases titled "Gul Hassan v. The State" (PLD 1969 SC 89), case titled "Muhammad Bashir v. The State (1970 SCM R 351) and case titled "Fazal-ur-Rehman alias Peshy Khan v. The State" (2000 SCM R 448).
15. The crux of the above discussion is that the prosecution has successfully proved its case to the hilt. The conviction and sentence of the appellant in the circumstances of this case needs no interference by this Court and this appeal being meritless stands dismissed. Under section 338-D, P.P.C. death sentence awarded to the appellant stands confirmed.
16.Before parting with this judgment, we would like to observe that the learned trial Court while passing sentence had erroneously directed the appellant for the payment of Rs,2,00,000 as fine, hence, to this extent, impugned judgment stands corrected with the observation that the appellant shall pay Rs,2,00,000 (Rupees two Lacs) to the legal heirs of Tanvir Akhter deceased as compensation as required under section 544A, Cr.P.C. or in default whereof to further undergo six