MUHAMMAD IQBAL Versus THE STATE

IFTIKHAR MUHAMMAD CHAUDHRY, J. ‑‑‑This, appeal by leave to the Court is directed against the impugned judgment dated 13th March, 1995 passed by Lahore High Court Bahawalpur Bench. in pursuance whereof death sentence awarded to appellant (convict) by the Additional Sessions Judge under section 302, P.P.C. was not confirmed and he was awarded life imprisonment with direction to pay Rs.20,000 as compensation to the legal heirs of the deceased. Benefit .of section 382‑B, Cr.P.C. however, was extended to him.

2. Leave to appeal was granted vide order dated 20th July, 1997 to consider following aspect of the case:‑‑

"3. Undoubtedly, there are contradictions etc. in the prosecution case and I feel that the same deserve reconsideration. In other words, we may see whether the alleged discrepancies make the prosecution case reasonably doubtful or they are immaterial. It would also be proper to examine whether the motive was strong enough to motivate the petitioner to take the life of his father‑in?-law. The petitioner feels that the sentences awarded to him by the High Court, are also excessive admittedly the eye‑witnesses are close relatives and one of them has not been produced. I am, therefore, in favour of granting leave to the petitioner to appeal against the judgment of the learned High Court."

3. Prosecution case as gleaned from F.I.R. Exh.PA is that Mst. Razia daughter of Muhammad Afzal (deceased) was married with convict/appellant whereas his sister Mst. Shahida was married to Muhammad Abbas son of deceased Muhammad Afzal and the brother of complainant Muhammad Bilal. It is stated that the marriage was the result of Vatta Satta. Mst. Razia wife of appellant had complaint against appellant of misbehaving with her. As per record prior to the incident she also filed a suit for dissolution of her marriage. But same was subsequently withdrawn as parties effected a compromise. However, before commission of the offence again she came back to the house of her deceased father. Reciprocally Mst. Shahida sister of appellant also went back to the house of her parents. In sequel of these events it so happened that on the night intervening 10th/11th April, 1992 appellant came to the house of the deceased where he was present in a room attending to his ailing wife alongwith his son P. W. Muhammad Bilal and Muhammad Sajid. As per the contents of F.I.R. the appellant asked the deceased that "you have turned my sister out of the house after giving her beating and you also did not permit my wife to stay at my home. You have destroyed me and I want to teach you a lesson". After having said so he took out a pistol from his Shalwar and fired at the deceased which landed on his chest, as such he fell down. Appellant made his escape good successfully although the complainant and others attempted to catch hold of him but due to his threats that they will also meet with same fate they could not do so.

4. P.W. Muhammad Bilal (complainant) lodged report at Police Station Saddar, Bahawalpur. P.W. Saeed Ahmad, S.H.O. reached at the place of incident and besides taking into possession blood‑stained earth underneath the dead body of the deceased and other incriminating articles he also recovered an empty cartridge Article P‑3 from the courtyard of the house of the deceased vide recovery memo. Exh.PD. Appellant was arrested on 16th April, 1992. On his pointation a pistol .12 bore Article P/1 with a live cartridge Article P‑2 was recovered vide recovery, memo. Exh.PB. The recovered pistol and incriminating empty cartridge was sent to Forensic Science Laboratory who gave positive opinion vide Exh.P.9 testifying use of the pistol Article P/1 in commission of the offence as incriminating empty cartridge matched with it.

5. Appellant did not plead guilty to the charge and claimed to be tried. Learned trial Court after having recorded prosecution evidence, statements of appellants under sections 342, 340(2), Cr.P.C. as well as statements of defence witnesses vide judgment dated 30‑11‑1992 convicted the appellant under section 302, P.P.C. and sentenced him to death. For confirmation or otherwise of the death sentence Murder Reference No. l of 1993 was sent to the High Court. In the meanwhile appellant also filed Criminal Appeal No. 106 of 1992 challenging his conviction.

6. A learned Division Bench vide impugned judgment dated 13‑3‑1995 disposed of both the proceedings as mentioned hereinabove. Hence this appeal.

7. Learned counsel for the appellant contended that statements of P. Ws. Muhammad Bilal and Muhammad Ashiq (eye‑witnesses) were not worthy of acceptance being unreliable on account of material contradictions in their statements.

8. Conversely learned State Counsel contended that in criminal cases Court is required to take into consideration the intrinsic value of ocular testimony ignoring minor discrepancies etc. noticeable here and there in the statements which normally crops in due to lapse of sufficient time between recording the statements before the police and in the Court and also depending upon the perception of each individual to translate the same story in hic own wordings.

9. Undoubtedly in instant case F.I.R. Exh.PA was lodged promptly by P:W. Muhammad Bilal in which appellant (convict) was nominated and an overt act during the commission of offence was also attributed to him. The place of occurrence cannot be disputed in view of the recovery of incriminating articles which were found to be stained with human blood as per report of Chemical Expert Exh.PL. The recovery of empty cartridge Article P3 recovered from the courtyard of the house where incident took place has furnished strong evidence against the appellant because the pistol Article P/1 recovered from his possession on 16‑4‑1992 has been found to have been fired from the same as per the report of Ballistic Expert Exh.P9. P.W. Muhammad Bilal and Muhammad Ashiq brother of the deceased have furnished consistent and trustworthy evidence. It may be noted that the house of P.W. Muhammad Ashiq is situated in the same compound where the house of the deceased is located. This fact has come on record during cross?examination on the statement of Muhammad Ashiq.

The evidence furnished by P.Ws. Muhammad Ashiq and Muhammad Bilal cannot be overruled stamping them to be the interested witnesses as they are closely related to deceased because as per record both of them have no ulterior motives or reasons to satisfy their vengeance to falsely involve the convict in the commission of the offence. Besides it, their statements have been fully corroborated by the medical evidence, recovery of incriminating empty, from the place of incident and the pistol from possession of accused and in respect whereof a positive report has been given by the Ballistic Expert testifying that the crime empty was fired from this pistol. Relying on the case of Iqbal alias Bhala and two others v. The State 1994 SCMR 1 their testimony can be believed without any

In addition to these reasons the presence of Muhammad Ashiq can also not be doubted because he is the brother of the deceased and on the day of incident Mst. Siraj Mai widow of the deceased was ill and the members of the family were attending her in the room, therefore, presence of P.W. Muhammad Ashiq at the place of incident seems to be genuine.

Moreover we failed to persuade ourselves to hold that the accused was substituted by the complainant party because in the cases of murder falling under section 302, P.P.C. substitution of an accused who is actually involved in the commission of the crime is a rear phenomena in this country particularly in an incident in which single accused was involved by nominating him in the F.I.R. from the very beginning. So much so if the parties are inter se related to each other, therefore, due to close kinship it is very hard to accept the theory‑of substitution. Reference in this behalf may be made to the‑cases of (i) Siraj Din v. Kala and another PLD 1964 SC 26; (ii) Rahim Bakhsh v. Muhammad Iqbal and others 1976 SCMR 528; (iii) Zar Bahadar v. The State 1978 SCMR 136; (iv) Muhammad Ayub alias Nikka v. The State PLD 1983 SC 27; (v) Shaukat Javed v. The State PLD 1993 Pesh. 109 and (vi) Ameer Ali v. The State 1999 MLD 758.

10. We have gone through the statements of both the eye‑witnesses P.W. Muhammad Bilal complainant and P.W. Khushi Muhammad. Both the witnesses have furnished consistent evidence as far as it relates to relationship between the appellant and the deceased, the manner in which appellant committed the crime. Both the witnesses were subjected to cross? examination thoroughly but nothing was brought on record to shake intrinsic value of their evidence. It is settled principle of law that while deciding cases pertaining to criminal administration of justice Court is required to take into consideration the intrinsic value of the evidence instead of labouring unnecessarily to find out such contradictions and improvements in the evidence which ultimately turns to nothing. Reference in this behalf may be made to Mushtaq alias Shaman v. The State PLD 1995 SC 46.

11. Now the next question for consideration is motive. It may be noted that the prosecution has set up the motive against the appellant that he was annoyed with his deceased father‑in‑law Muhammad Afzal because he has turned out of the house to his sister (Mst.~ Shahida) who was married to Muhammad Abbas son of deceased Muhammad Afzal and the wife of the appellant Mst. Razia Bibi was also not being allowed to go to the house of her husband. The prosecution has fully established the motive against him through the evidence of Muhammad Bilal complainant and P.W. Muhammad Ashiq. Apparently appellant has committed the murder of the deceased in a cruel manner, therefore, even if there is any weakness in establishing the motive its benefit has already been extended to him by inflicting lesser punishment instead of normal penalty of death. Though in view of the law laid down by this Court in the case of Noor Muhammad v. The State 1999 SCMR 2722 accused cannot claim as a matter of right benefit if the motive for the commission of the offence is not established or is weak.

Thus no case is made out for interference in the impugned judgment. Consequently the appeal is dismissed.

Q.M.H./M.A.K./M‑197/S ?????????????????????????????????????????????????????????????????? Appeal dismissed.