MUHAMMAD ILYAS Versus THE STATE

NAZIM HUSSAIN SIDDIQUI, J.‑‑‑ This appeal with leave of this Court is directed against the judgment dated 10‑3‑1998, passed by a Division Bench, Lahore High Court, where by the judgment dated 7‑2‑1993 of Special Court, Suppression of Terrorist Activities, Gujranwala, convicting appellant Muhammad Ilyas son of Muhammad Boota and sentencing him to death and to pay a sum of Rs.25,000 as compensation to the legal heirs of Mushtaq Hussain deceased or in default thereof to further undergo R.I. for two years and also convicting him under section 324/34, P.P.C., for causing injuries to Rehmat Ali, P.W. and sentencing him to undergo R.I. for ,5 years and to pay a sum of Rs.10,000 as compensation to the said injured or in default thereof to further suffer R.I. for six months, ‑was maintained. By the same judgment of Special Court; co‑accused Muhammad Ilyas son of Ghulam Hussain tried no in absentia was also .convicted and sentenced to suffer imprisonment for life and to pay an amount of Rs.25,000 as compensation to the legal heirs of the deceased.

2. The occurrence took place on 2‑8‑1991 at about 12 noon, in the area of village Qasba Market, Police Station Sara-e‑Alamgir, District Gujrat, F. I. R. was lodged 'on the same day at about 12‑45 p.m. at said police station by Haji Muhammad Sadiq, complainant. It was recorded by Muhammad Abbas, A.S.‑I. under sections 302/324/34, P.P.C. Deceased Mushtaq was a son of the complainant. F.I.R. was lodged against 3 persons namely, Muhammad Ilyas son of Muhammad Boota, Bashir Ahmed son of Muhammad Yousaf and Muhammad Ilays son of Ghulam Hussain, latter named was declared a proclaimed offender.

3. The motive as set up in the F.I.R. was that abovenamed deceased had occupied Shamlat land, measuring 6 Katials, in village Marrhi, within the' jurisdiction of above police station, constructed a house on a portion of it, an on the remaining area had sown the crop of Bajra. The house of the appellant was situated on other end of the land. The appellant, it is alleged, attempted to take over possession of the Shan‑flat land from the deceased but did not succeed due to strong resistance by the deceased.

4. Briefly stated the case of the prosecution is that deceased was a son of the complainant. On the day of occurrence, the complainant,` deceased and Rehmat Khan, P.W. had gone to Qasba Market for making purchases. The complainant entered into the shop of one Haji Reham Ali, while the deceased and Rehmat Khan P.W. remained in the covered lane, which was very close to said shop. All of a sudden the appellant armed with a Kalashnikov, Bashir alias Bashira armed with a Mauser 30 bore and Muhammad Ilyas son of Ghulam Hussain (P.O.) with a 7MM rifle appeared there. The appellant, it is' alleged, had fired with Klashnikov upon deceased, which hit him on the back of his neck. Then co‑accused Bashir fired a burst with Mauser, which hit on the right upper arms of deceased on its back. Thereafter, co‑accused Muhammad Ilyas son‑of Ghulam Hussain (P.O.) fired with rifle, which hit Rehmat Ali on his right knee. He also fired upon deceased hitting on his left thigh. The appellant then again fired upon the deceased, which hit his left upper arm. He fell down and succumbed to his injuries on the spot. Immediately after the occurrence, the complainant went to the police station and lodged the F.I:R.

5. Muhammad Abbas, A.S.‑I. after registration of F. I. R., went to the scene of offence and examined the dead body of the deceased. Then came inquest report (Exh.PH/1). He sent the dead body through Allah Yar, Constable (P.W.7) for post‑mortem examination.

6.The appellant was arrested on 29‑3‑1992 by Javed lqbal Inspector. Bashir Ahmed was arrested on 14‑8‑1991 by ; Muhammad Ilyas son of Ghulam Hussain was declared absconder.

7. Blood‑stained earth and 4 empties were secured from the scene of offence. Kalashnikov was recovered from possession of appellant on 12‑4‑1992. On completion of investigation, charge‑sheet was submitted before the aforesaid Special Court.

8. Necessary charge under sections 302/324/34, P.P.C. was framed against the appellant and said Bashir. As per judgment of trial Court, the complainant and said Bashir Ahmed had compronused, during pendency of the proceedings, as such, neither charge was framed against the latter nor his statement under section 342, Cr.P.C. was recorded and proceedings against him were dropped.

9. The appellant, in his statement recorded under section 342, Cr.P.C. had denied the prosecution allegations and claimed to be innocent. He neither examined himself on oath nor produced any witness in defence.

10. At trial, the prosecution examined Dr. Ijaz Ahmed P. W.1, Dr.. Zafar Iqbal Gondal, P.W.2, Muhammad Sadiq P.W.3, Rehmat Khan, RWA, Muhammad Farooq, P.W.5, Akhtar Naqqash, P.W.6, Allah Yar, Constable, P.W.7, Qalab Abbas, H.C. P.W.8, Hasan Askari, P.W.9, Muhammad Aslam, P.W.10, Muhammad Abbas, A.S.I. P.W.11, Muhammad Abbas, P.W.12, Zahid Iqbal, P.W.13, Javed Iqbal, Inspector, P.W.14, Nazakat Hussain, H.C., P.W.15, Sultan Ahmed, Inspector, P. W .16. P. Ws Muhammad Farooq, Mazhar Hussain, Basharat Hussain and remaining P.Ws were given up.

11. The following injuries were found on the person of Rehmat Khan, P.W.:

"Fire‑arm entry wound i/2 c.m: x 1/2 c.m. going invert on front of right knee‑joint. There was swelling and tenderness. Haematoma was, formed and there was bleeding from the wounds. Movements were restricted. Exit wound injury No. l measuring 1 c. m. x 1 c.m. on inner part of right knee. Edges were inverted. General condition of the patient was satisfactory. Injury was kept under observation and advised X‑ray of right knee joint.

This injury was caused by fire‑arm, duration of injuries was within five hours. Injured was referred to D.H.Q. Hospital, Jhelum.

The following injuries were found on the person of the deceased:‑‑

Injuries :

(1) Fire‑arm entry wound 1/2 c.m. x 1/2 c.m. x going invert. Edges were inverted. On the back of left side neck, slight blackening was present.

(2) Fire‑arm entry wound 1/2 c.m. x 1/2 c.m. going invert. Edges were inverted on the lateral aspect of left upper arm.

(3) Fire‑arm entry wound 1/2 c.m. x 1/2 c.m. x going invert. Edges were inverted on the back of right elbow‑joint.

(4) Fire‑arm entry wound 3/4*c.m. x 1/2 c.m. on the front to medial aspect of left thigh. The edges inverted.

Exit wound :

(1) 3‑1/2 c.m. x 3 c.m. on the chin extending to the lower lip. The mandible was fractured.

(2) Exit wound 3 c.m. x 2 c.m. on the medial aspect of left upper arm. The bone underneath was fractured.

(3) Exit wound 8 c.m. _x7 c.m. on the back and upper part of right upper arm. The edges were inverted.

(4) Exit wound 3 c.m. x 2 c.m. on the medial aspect of left thigh. Edges were everted. .

According to the doctor, the injuries were caused by fire‑arm. Death occurred instantaneously and the time between death and post‑mortem was about 5 hours.

12. Mr. Sardar Muhammad Ishaq Khan, Advocate Supreme Court, learned counsel for the appellant contends that the prosecution has failed to establish its case and that the evidence of the complainant and injured Rehmat Khan does not inspire confidence. He also argued that two eye witnesses namely, Muhammad Shafi and Muhammad Farooq were not examined by the prosecution and were given up. According to him‑had they been examined, they would not have supported the prosecution. Learned counsel also argued that alleged motive was not established and it being the integral part of the prosecution story, the entire case fell to the ground.

13. First, we take up the motive. Both trial Court and the High Court reached the conclusion that, the motive as set up was proved. The trial Court, while dealing with the aforesaid motive, noted that the complainant in his testimony, besides above motive, also added second motive, deposing that two years prior to this incident, the appellant had resorted to firing upon deceased and the complainant and at the same time got a false case registered against them. The trial Court also observed that non‑production of revenue record does not ipso facto provide a ground for disbelieving the motive. The findings recorded by trial Court and High Court, as being the findings of facts are consistent with the record. Even if second motive is excluded on the principle of safe dispensation of justice, as was done by High Court, yet the motive mentioned in the F.I.R. was established without any shadow of doubt. There is an ample evidence on record that the appellant had said motive for committing the crime.

14. Mr. Muhammad Ibrahim Satti, learned counsel for the complainant cited Abdul Wahab alias Rehra v. The State 1999 SCMR 1668 to contend that in a murder case where no motive is alleged or the same remains shrouded in the mystery, yet, if the prosecution establishes its case against the accused beyond reasonable doubt, the normal sentence in such case is death. He further submitted that in this case motive as alleged was proved and was rightly taken by the Courts below as strong corroborative evidence. Be that as it may, when premeditated and cold-blooded murder is committed, like the present one, and same is established by irrefutable evidence, the motive does not play any effective role. What is important is the nature of evidence and not the motive, which may or may not be proved. Even, if the motive is not proved it could not be a ground to discard the unimpeachable evidence.

15. This brings us to the ocular account, which has been furnished by the complainant and injured Rehmat Khan. Learned counsel for the appellant criticised the evidence of these witnesses on various grounds. Firstly, he argued that both. these witnesses are closely related and on that score their testimony could not be relied upon, unless it was corroborated by strong piece of evidence. On the point of alleged relationship, trial Court at length examined this aspect and reached the conclusion, and very rightly so, that there was not blood relationship among them. The test of credibility of a witness is neither his relationship or friendship with either side, nor his mere presence at the scene of offence at the time of occurrence. but it is worth of his testimony. valued on the established judicial norms, which finally proves or disproves his partiality or impartiality as a witness. These witnesses. stood the test of cross‑examination and were rightly believed by the Courts below.

16. Learned counsel submitted that none of these witnesses were present at the scene of offence and subsequently they were introduced to support the case of the prosecution. Presence of both above witnesses at the spot at the time of occurrence was proved beyond any shadow of doubt. F.I.R. of this case was lodged within 45 minutes of the occurrence, while the police station was two and half miles away from the place of occurrence. Above fact is established from the record and its correctness was not challenged before us. F.I.R. was lodged promptly and it showed that the complainant had witnessed the crime and it was the reason that he had provided all necessary details in that regard. Had he not been there, he could not furnish above minute details. Comprehensive definition of term "corroboration" covering all its facet is not possible. It can be gathered by any thing from the events, which can satisfy a prudent mind in a given circumstances. There is sufficient corroboration of his testimony. Dead body was found from the JE place, which he disclosed, in F.I.R. Blood stained earth was also secured from there. The plea of learned counsel for the appellant that had he (complainant) been present there, he too would have sustained injury, is, ex facie, without any substance. He was present there and had witnessed the incident. The ocular testimony is true intrinsically. The grounds urged by learned counsel for the appellant are unreasonable conjectural and are based upon unfounded presumption which run contrary to the proved facts. Above pleas are meritless, besides being highly improbable. The prosecution evidence does not admit any hypothesis other than the guilt of the appellant.

17. Rehmat Khan P. W. had sustained injuries in the firing. Learned counsel for the appellant attempted to argue that injuries so sustained by him were on non‑vital parts of the body and were self‑inflicted. He submitted that entry wounds were 1/2 c.m. x 1/2 c.m. The argument is devoid of any force, as the'exit wounds'were 1 c.m. x 1 c.m. It is noted that all the entry wounds of the deceased were also 1/2 c.m. x 1/2 c.m. Immediately after the occurrence he was first taken to the police station and then to the hospital where his injuries were noted. In fact, he is an independent witness and had no enmity with any of the assailants. His testimony is reliable and inspires confidence. He was rightly believed by trial Court and High Court.

18. Learned counsel also argued that the medical evidence is in conflict with the ocular version. He submitted that according to the prosecution, the appellant and Bashir had fired with Kalashnikov and Mauser, as such, the size of the injuries, the wounds of entry and exit shall have been different. It is noted that Dr. Zafar Iqbal Gondal, who had conducted the autopsy on dead body of deceased, in examination in chief, stated that injuries were the result of fire‑arm. In cross, he stated that "possibility could not be ruled out that injuries Nos. 1 to 3 may have been caused by one and the same weapon". No other question was put to him on this point. The doctor was not questioned specifically in respect of each of those injuries, nor he was asked as to which of these injuries were caused by Kalashnikov or Mouser. Besides, the doctor used the word "possibility" which does not necessarily mean that all the injuries were caused by the same weapon. This contention is also of no use for the defence.

19. It is significant to note that proceedings against Bashir Ahmed were dropped on the basis of compromise, which was neither challenged before trial Court nor before High Court. The trial Court, however, in para. 16 of its judgment, mentioned the details about it. Before us also, its validity and correctness have not been questioned. Said Bashir Ahmed was nominated in F.I.R, and specific role was assigned to him. Charge‑sheet was also submitted against him. The fact that he had compromised and compensated the affected parties is another circumstance to show that the incident took place in the way it was alleged.

20. In consequence, we do not find any merit in this appeal and the l I same is dismissed.

N.H.Q./M‑198/S Appeal dismissed.