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Criminal Appeal No. 248 and Murder Reference No. 34 of 1984, decided on 14th February, 1987.

‑‑‑S. 302/379/34‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑Related witnesses‑‑Testimony of‑ Witnesses having no animosity whatsoever against accused Litigation between accused and his own paternal grandfather pending‑‑Paternal grandfather of accused not in any way related to deceased or witnesses so as to put up false case against his own grandson‑‑Presence of witnesses at time of occurrence, found probable‑‑Arrest of accused while riding motor‑cycle of deceased lending support to prosecution‑‑Day time occurrence‑‑Accused son of niece of deceased‑‑No reason for witnesses to substitute accused for real culprit‑‑Delay in lodging F.I.R. found explained‑‑Testimony of witnesses, held, could not be brushed aside merely on account of their relationship with deceased‑‑Prosecution had established its case beyond reasonable doubt‑‑Conviction and sentence maintained in circumstances.

‑‑Ss. 302 & 379/34‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14‑‑Weapons of offence, recovery of‑ ‑Corroborative piece of evidence‑‑No crime empty recovered from spot‑‑Lead bullet recovered from dead body found deformed and sent alongwith revolver to Ballistic Expert‑‑Comparison of lead bullet not possible‑‑Recovery of weapon of offence, held, of no consequence in circumstances.

‑‑‑Ss. 302 & 379/34‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14‑‑Motive‑‑Strained relations of accused with his wife and deceased admonishing him‑‑Wife or father‑in- law not produced in rebuttal‑‑Testimony of witnesses, held, were consistent and ringing true‑‑Motive proved in circumstances.

S.M. Latif Khan Khosa for Appellants.

Mrs. Yasmeen Saigal for the State.

Date of hearing: 14th February, 1987.

‑‑Maqbool Ahmad (25) son of Jan Muhammad and Muhammad Yasin (17/18) son of Muhammad Yousuf, have been convicted under section 302/34, P.P.C. for the murder of Muhammad Sharif (60), maternal grandfather (paternal uncle of the mother) of Maqbool Ahmad, by a learned Additional Sessions Judge, Multan, vide judgment, dated 22‑10‑1983. Vide the same judgment the aforementioned convicts have also been convicted under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 379/34, P.P.C. for having committed theft of the motor cycle of the deceased. Under section 302/34, P.P.C. Maqbool Ahmad has been sentenced to death and a fine of Rs.10,000 or in default two years' R.I. Muhammad Yasin has been sentenced to imprisonment for life and a fine of Rs.10,000 or in default two years' R.I. Under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, read with section 379/34, P.P.C. both the convicts have been sentenced to two years' R.I. each. The substantive sentences have been ordered to run concurrently. It has also been directed that out of the fine, if realized, a sum of Rs.10,000 would be paid to the legal heirs of Muhammad Sharif deceased as compensation under section 544‑A, Cr.P.C.

2. Both the convicts have challenged their convictions and sentences through the present appeal (Criminal Appeal No. 248 of 1984) while the matter also stands referred to us under section 374, Cr.P.C. seeking confirmation of the sentence of death awarded to Maqbool Ahmad. Both these matters shall be disposed of by this judgment.

3. The occurrence in this case took place on 28‑4‑1982 at 12‑30 noon, on a path near Masjid Araianwali, in the area of village Rangilpur at a distance of six miles from Police Station Mumtazabad, District Multan.

The occurrence was reported to the police through F.I.R. Exh.P.K. which was lodged at the police station by Abdul Latif P.W.10, brother‑in -law (wife's brother) of Muhammad Sharif deceased at 6‑10 p.m. on the same day. The F.I.R. was recorded by Muhammad Irshad (P.W.15),the then A.S.I. posted at Mumtazabad Police Station.

4. Regarding motive it has been alleged that Maqbool Ahmad appellant, who is son of the niece of the deceased, maltreated his wife and intended to divorce her. The deceased used to admonish him and tell him that he (the deceased) arranged his marriage with great difficulty and he should desist from maltreating his wife and divorcing her. The appellant got annoyed over it and declared that he would avenge his insult.

5. So far as the actual occurrence is concerned, it has been stated that on 28‑4‑1982 at 12‑30 noon, Abdul Latif P.W.10, brother‑in‑law of the deceased had gone to the deceased to meet him at Rangilpur. The deceased took him along to settle some dispute about the drainage water of the mosque known as Mosque Araianwali. They went on motor‑cycle to the said mosque. Soon after their arrival, near the aforementioned mosque, both the appellants came over there. Maqbool Ahmad appellant f first f fired at the deceased hitting him on the right flank. He fell down. In the meantime Yasin also fired with his revolver but the same did not hit the deceased. On hearing alarm, Muhammad Zakriya P.W.11 and Muhammad Shafi (not produced) came to the spot and witnessed the occurrence. They tried to apprehend the appellants, but Maqbool Ahmad fired in the air and. held out threats to the P.Ws. Thereafter, the appellants decamped on the Suzuki motor‑cycle of the deceased which was parked nearby.

6. It is noteworthy that the case was originally registered under section 307/379/34, P.P.C. as Muhammad Sharif was then alive in injured condition. He was removed in injured condition to Nishtar Hospital, Multan soon after the occurrence by P.W.10 Abdul Latif and others. He died in the Nishtar Hospital on 30‑4‑1982 at 9‑00 a.m.

While in injured condition, Muhammad Sharif was medically examined on 28‑4‑1982 at 1‑00 p.m. by Dr. Muhammad Hussain P.W.12, Casualty Medical Officer, Nisthar Hospital, Multan. He noticed the following injury:‑

"A lacerated wound circular in shape, about 1/3 c.m. in diameter on right side of chest in posterior axillary line, 15 c.m. below posterior axillary fold and 18 c.m. below and lateral to right nipple. Edges of wound pressed and reddened. Bleeding present. Patient going into shock B.P. 80."

The injury was opined to have been caused by fire‑ arm.1t was kept under observation and it was further opined that it was caused within about one hour.

7. Autopsy on the dead body of Muhammad Sharif deceased was performed on 30‑4‑1982 at 12‑30 p.m. by PW.1 Dr. Akbar Saeed Senior Medical Officer. Nishtar Hospital, Multan. He noticed the following fire arm injury on the dead body of the deceased, besides two surgical wounds:‑

"A fire‑arm entry wound with lacerated and burnt edges, about 1/2 c.m. in diameter, located over the right lateral chest over the mid axillary line, 15 c.m. below the anterior axillary fold and 16 c.m. above the right iliac crest:"

It has been opined by Dr. Akbar Saeed that death had occurred as a result of shock and haemorrhage due to the aforementioned injury, which damaged the right and left domes of the disphram right lobe of liver and spleen and mesentery. This injury according to the doctor was ante mortem and was sufficient to cause death in the ordinary course of nature and had been caused by fire‑arm.

8. Both the appellants were apprehended on 5‑ 5‑ 1982 at Chowk Colony, Khanewal by P.W. 8, Mazhar Hussain, P.W.9 Manzur Hussain and Muhammad Afzal (not produced) constables of Police Station Khanewal. At the time of their apprehension, the appellants were allegedly riding on Suzuki Motor‑cycle belonging to the deceased. Revolver P.1 alongwith seven live cartridges P.2/1‑7 was recovered from Maqbool Ahmad appellant vide memo. Exh.P.E. under section 550, Cr.P.C. Similarly motor‑cycle P.3 registration book P.4, certificate of insurance P.5 and driving licence P.6 in the name of Manzoor Hussain son of the deceased, were also seized under section 550, Cr.P.C. vide memo. Exh.P.F. Riaz Hussain Head Constable P.W.5 who was present at Ayub Chowk was entrusted the custody of the appellants as also the aforementioned articles recovered from them. In fact, memos. Exhs.P.E. and P.F. were prepared by him.

On 6‑5‑1982, Muhammad Irshad A.S.I. P.VV.15, received information that the appellants were in the custody of Khanewal police. He went to the said police station and found the accused in the lock‑up. Revolver P.1 seven live cartridges P.2/1‑7, motor‑cycle P.3, registration book P.4 certificate of insurance P.5 and driving licence P.6 were taken into possession by Muhammad Irshad A.S.I. vide memo. Exh.P.G. Through application Exh.P.Q he obtained permission from the Ilaqa Magistrate, Khanewal to take custody of the accused and thereafter he effected their formal arrest. Muhammad Yasin while in custody on 12‑5‑1982, led to the recovery of revolver P.10 alongwith four live cartridges P.11/1‑4 from underneath a Kinoo tree in an orchard in the case of village Rangilpur vide memo. P.M. attested by Haji Abdul Ghafoor P.W.13, Muhammad Irshad A.S.I. P.W.15 and Muhammad Rashid (not produced).

9. At the trial Abdul Latif P.W.10 and Haji Muhammad Zakriya P.W.11, testified as eye‑witnesses and fully supported the prosecution version as disclosed in the F.I.R.

10. Muhammad Yasin appellant denied his friendship with Maqbool Ahmad appellant and claimed that he had been falsely involved in this case. Similarly, Maqbool Ahmad appellant also took up the plea of denial simplicter. He alleged that he was inimical towards his paternal grandfather, namely, Abdullah, with whom litigation over six acres of land was pending before the High Court and at the behest of that Abdullah he has been involved falsely in this case.

11. It has been contended on behalf of the appellants that the motive, as alleged by the prosecution, has not been proved at all and there was no reason for Maqbool Ahmad to murder his own maternal grandfather. It has further been urged that Yasin has been falsely involved. He has been accused of only ineffective firing. His alleged friendship with Maqbool Ahmad has not been proved.

It has also been argued that the eye‑witnesses, namely, Abdul Latif P.W.10 and Haji Muhammad Zakriya P.W.11 were close relatives of the deceased and, therefore, their testimonies' required corroboration from unimpeachable source, but in the circumstances of the present case, there is no corroboration. The recoveries have been disbelieved by the learned trial Court.

12. We have carefully considered and analysed the pleas raised on behalf of the appellants. Admittedly, Abdul Latif and Haji Muhammad Zakriya are relatives of the deceased, but there is nothing on the record to suggest in any manner that these witnesses had any animosity whatsoever against the appellants. Litigation of Maqbool Ahmad appellant is pending against his own paternal grandfather, namely Abdullah, who is not in any manner related to the deceased or the eye‑witnesses, namely, Abdul Latif and Haji Muhammad Zakriya. The presence of Abdul Latif and Haji Muhammad Zakriya at the time of occurrence is quite probable. Their testimonies cannot be brushed aside merely on account of their relationship with the deceased. The manner in which both the appellants have been arrested by three constables of Khanewal Police Station at Colony Chowk, Khanewal, while riding on the motor‑cycle belonging to the deceased lends support to the prosecution version.

So far as the recoveries of weapons of offence are concerned, the learned trial Court was, of course, justified not to consider these recoveries as corroborative piece of evidence, inasmuch as no crime empty was recovered from the spot and the lead bullet recovered from the dead body was sent alongwith the revolver recovered from Maqbool Ahmad appellant to the Ballistics Expert, but it was opined that on account of deformity of lead bullet comparison was not possible. The recoveries of weapons of offence are of no consequence in the present case and are not connected with the crime.

13. A plea has been advanced on behalf of the appellants that the occurrence took place at 12‑30 noon but the F.I.R. was lodged at 6‑10 p.m., although the distance between the place of occurrence and the police station is only six miles. It has thus been argued that in this case the F.I.R. has been lodged after a delay of about six hours which has not been explained. This plea is without any substance. Abdul Latif, the first informant, P.W.10 and others took Muhammad Sharif deceased while he was still alive in injured condition to the Nishtar Hospital, Multan, in the first instance. Naturally medical aid was the first priority. After getting him admitted in the hospital, Abdul Latif was able to come back and to lodge the report at the police station. The delay of few hours thus stands explained.

14. It has been claimed on behalf of Maqbool Ahmad that his relations with his wife and in‑laws were quite cordial and thus depositions of the P.Ws. about the motive were false. Although the burden of proof of motive was also on the prosecution, but nevertheless if relations of the appellant Maqbool Ahmad with his wife and in‑laws were normal and cordial, he could produce his wife or father‑in‑law who is admittedly alive in defence, but he has not been able to do so. The testimonies of Abdul Latif and Haji Muhammad Zakriya are quite consistent and ring true when their intrinsic worth is assessed.

15. As a result of what has been said above, we have come to the positive conclusion that the prosecution has established its case against the appellants beyond any reasonable doubt. There is no question of any false involvement or substitution in this case in which the occurrence took place during the broad daylight and the principal offender is none else but the son of the niece of the deceased. There was no reason at all for Abdul Latif and Haji Muhammad Zakriya to substitute the appellants in place of the real culprits.

16. For the foregoing reasons we uphold the judgment under appeal and thus maintain the convictions and sentences of the appellants. The appeal, therefore, is dismissed while the death sentence awarded to Maqbool Ahmad appellant is confirmed.

S.A. /M‑170/L Appeal dismissed.

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