MURID HUSSAIN Versus THE STATE

ASIF SAEED KHAN KHOSA, J. -- Murid Hussain appellant was convicted for an offence under section 302, P.P.C. by the learned Additional Sessions Judge, Faisalabad vide judgment, dated 26-7-1994 and was sentenced to death by way of Qisas and to pay a sum of Rs. 25,000 to the heirs of Niaz Ahmad deceased by way of compensation under section 544-A, Cr.P.C. It was ordered that the amount of compensation shall be recoverable as arrears of land revenue and in default of payment or recovery thereof the appellant shall undergo rigorous imprisonment for a period of three months in case his sentence of death is not confirmed. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No. 509 of 1994 which has been heard by us alongwith Murder Reference No. 193 of 1994 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution case unfolded in the F.I.R. was that Nisar Ahmad complainant was a driver by profession and his elder brother Niaz Ahmad was a barber who was running a Hamam at Tariq Chowk Samanabad, Faisalabad. On 8-9-1993 Nisar Ahmad complainant went to see his brother Niaz Ahmad in the company of Muhammad Nasir and Muhammad Afzal P.Ws. and after sitting at Niaz Ahmad's Hamam for sometime the three of them came out of the Hamam and the complainant's brother Niaz Ahmad also came out to see them off. At about 6-00 p.m. suddenly Murid Hussain appellant emerged there armed with a rifle and raised a Lalkara that he would avenge his insult by Niaz Ahmad. Then, within the view of the witnesses, Murid Hussain appellant fired two shots from his rifle at Niaz Ahmad which hit him at the front of his chest. Upon receipt of those injuries Niaz Ahmad fell down and died at the spot. Murid Hussain appellant then fled from the place of occurrence. The motive set up in the F.I.R. was that two days before the said occurrence Niaz Ahmad deceased and Murid Hussain appellant had altercated with each other over a dispute regarding money and on the basis of that grievance Murid Hussain appellant had committed the murder of complainant's brother Niaz Ahmad.

3. Soon after the occurrence Nisar Ahmad complainant left for reporting the matter to the police. He met Zafar Iqbal, S.I. (P.W.10) at Madni Chowk, Faisalabad at 6-35 p.m. on the same day and made a statement (Exh. P.D.) before him in respect of the incident in question. Subsequently formal F.I.R. No. 385 (Exh. P.D./1) was recorded at Police Station Factory Area, Faisalabd on the same day at 6-55 p.m. by Ghulam Qadir, M.H.C. (P.W.9) for an offence under section 302, P.P.C.

4. After recording the statement of Nisar Ahmad complainant at Madni Chowk, Faisalabad, Zafar Iqbal, S.I. (P.W.10) took up the investigation of this case, proceeded to the place of occurrence, inspected the same, secured blood stained earth there from and prepared a rough site-plan thereof besides recording the statements of witnesses thereat. He also prepared an injury statement as well as an inquest report in respect of Niaz Ahmad deceased and then dispatched his dead body to the mortuary for autopsy.

5. Post-mortem examination of the dead body of Niaz Ahmad deceased was conducted by Dr: Muhammad Ishaq (P.W.11) at 10-00 a.m. on 9-9-1993. The doctor found two wounds of entry on the dead body with corresponding wounds of exist. All the said injuries were found by the doctor to be ante-mortem and cased by fire-arm. In the opinion of the doctor a cause of death was haemorrhage and shock due to injuries Nos. l and 2 which were sufficient collectively as well as individually to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was immediate and that between the death and post-mortem examination was about sixteen hours.

6. After the post-mortem examination of the dead body Zafar Iqbal, S.I. (P.W.10), the Investigating officer, received the last- worn clothes of the deceased on the same day. He got a formal site-plan of the place of occurrence prepared by a draftsman on 10-9-1993. Subsequently on 17-9-1993 Murid Hussain appellant voluntarily appeared before him and produced his 7 M.M. rifle and its licence before him which were duly secured and taken into possession. Later on he completed the other formalities and submitted a challan against the appellant.

7. At the commencement of the trial a Charge under section 302, P.P.C. was framed by the learned trial Court against the appellant to which he pleaded not guilty and claimed a trial.

8. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. Nisar Ahmad complainant (P.W.7) and Muhammad Afzal (P.W.8) furnished the ocular account of the incident and the former also deposed about the motive. Dr. Muhammad Ishaq (P.W.11) provided the medical evidence. Abdul Ghafoor (P.W.2) stated about the recovery of a rifle and a licence from the appellant during the investigation. Zafar Iqbal, S.I. (P.W.10) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more. or less of formal nature.

9. In his statement recorded under section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him the appellant had stated as follows:

"I had been living with Niaz Ahmad deceased and my household articles were in his possession. I made repeated demands for return of this property but he refused. Meanwhile some unknown person murdered Niaz Ahmad deceased and his brother Nisar Ahmad, the complainant falsely implicated me in this case. P.Ws. (private) being close relatives of deceased falsely stated against me."

However, the appellant opted not to make any statement on oath under section 340(2), Cr.P.C. and he also did not produce any evidence in his defence.

10. At the conclusion of the trial the learned Additional Sessions Judge, Faisalabad found the case of the prosecution to have been proved against the appellant beyond reasonable doubt and, thus, he was convicted and sentenced as mentioned and detailed above. Hence; the present appeal and the connected Murder Reference before this Court.

11. We have heard the learned counsel for the parties and have gone though the record with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and that the appellant deserved to be extended the benefit of such doubt. In the alternative he has canvassed for reduction of the appellant's sentence. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and there was no mitigating circumstance available on the record warranting reduction of the appellant's sentence.

12. After hearing the learned counsel for the parties and going through the record we are in no manner of doubt that the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt. It was a daylight occurrence and the F.I.R. had been lodged with sufficient promptitude wherein the appellant had been specifically nominated to be the sole perpetrator of the offence in question. Nisar Ahmad complainant (P.W.7) was a first cousin of the appellant and Muhammad Afzal (P.W.8) was a brother-in-law of the complainant. Both these witnesses had absolutely no background of ill-will or animosity with the appellant so as to prompt them to falsely implicate the appellant in a case of this nature. It is true that Nisar Ahmad complainant (P.W.7) was a brother of the deceased but he was never shown to be interested in false implication of the appellant. Muhammad Afzal (P.W.8) was not directly related to the deceased and he was related to the deceased only through the complainant. Thus, both these eye-witnesses produced by the prosecution could neither be called interested nor inimical. It was admitted at all hands that the place of occurrence was a busy place and a lot of people were always present there at, especially at the time of the day when the occurrence in this case had taken place. It was, therefore, inconceivable to argue that the occurrence in question had remained witnessed and that the appellant had been implicated in this case on the basis of suspicion. It is correct that Nisar Ahmad complainant (P.W.7) and Muhammad Afzal (P.W.8) were chance witnesses who lived away from the place of occurrence but their explanation for their presence at the place of B occurrence at the relevant time was quite plausible. Nisar Ahmad complainant had come from Dubai on leave during the days of occurrence and, therefore, it was not unusual or unnatural for him to have visited his brother Niaz Ahmad deceased at that time of the day without any specific purpose. A frolic or carefree abandon like this displayed by him in the spirit of vacationing was something which was expected from him at that period of time. His going to and lazing around at the shop of his brother was, thus, quite understandable. Muhammad Afzal (P.W.8) was stated to be jobless during the days of occurrence and, therefore, his whiling away of time with his brother-in-law, i.e. Nisar Ahmad complainant, was also not something which was out of the ordinary. Both the said 'witnesses had made consistent statements regarding the main occurrence and had thus, inspired our confidence. We have, therefore, C confidently placed our reliance on the statements of these witnesses for recording upholding the conviction of the appellant.

13. The ocular account furnished by the prosecution had received ample corroboration from the motive set up by it. Nisar Ahmad complainant (P.W.7) had stated about the motive in clear terms and because of his close relationship with the deceased as well as the appellant he was likely to know about the loan taken by the appellant from the deceased and the latter's insistence regarding its return by the former. The complainant was personally involved in the negotiations for the return of that loan and he had also been present during the altercation between the appellant and the deceased taking place two days prior to the present incident. Even in his own statement recorded under section 342, Cr.P.C. the appellant had, in so many words, alluded to another motive nourished by the appellant against the deceased which could also have propelled him into aggression. Thus, any failure on the part of the Investigating Officer not to have investigated the motive set up by the prosecution had in fact failed to cause any dent to the prosecution's case in respect of the alleged motive.

14. The eye-witnesses produced by the prosecution had received ample support from the medical evidence inasmuch as the time of occurrence, the weapon used and the seats of injuries stated by the eye-witnesses had all been confirmed by the medical evidence.

15. It is true that the rifle secured from the appellant's possession during the investigation was a licensed rifle of the appellant and also that on account of lack of recovery of any crime-empty from the place of occurrence after the incident the said rifle had remained unconnected with the offence in question yet it is equally true that such a legally inconsequential recovery of weapon of offence does not destroy the prosecution case as a whole or to render it doubtful merely on this account.

16. for what has been discussed above we have arrived at a confident conclusion that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt and therefore, the learned G trial Court was quite justified in recording the appellant's conviction under section 302, P. P. C.

17. We have also given our anxious consideration to the question of sentence to be passed against the appellant but have failed to find any circumstance on the record warranting reduction of the appellant's sentence. The appellant was very closely related to the deceased and it was an admitted fact that he had even lived in the house of the deceased for many years. The deceased had also supported the appellant through financial help for establishing his business and had advanced a sizeable amount of money to him by way of a loan in that regard. It was because of the appellant's persistent failure to return that amount of money to the deceased that the deceased's relations not only with the appellant but also with the deceased's own wife hid become strained. In the backdrop of the favours shown by the deceased to the appellant at different times it could be appreciated that the appellant not only proved to be ungrateful to the deceased but he also depicted extreme highhandedness in committing the murder of the deceased in a busy market-place in broad daylight. Such ingratitude displayed and unashamed highhandedness demonstrated by the appellant hats rendered him undeserving of any concession in the matter of sentence. Thus, the sentence of death passed against the appellant by the learned trial Court is upheld and confirmed.

18. We have noticed that the learned trial Court had sentenced the appellant to death by way of Qisas whereas the evidence contemplated by the provisions of section 304, P.P.C. was not available in the present case. Therefore, the sentence of Qisas is converted to one under Tazir and the appellant is sentenced to death by way of Tazir under section 302(b), P.P.C. The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of the deceased is also upheld with a slight modification that in case of failure of the appellant to pay the amount of compensation he shall suffer simple imprisonment for a period of three months instead of rigorous imprisonment ordered by the learned trial Court. The learned trial Court had failed to appreciate in that context that the provisions of section 544-A, Cr.P.C. do not contemplate rigorous imprisonment at all.

19. Consequent to the above discussion Criminal Appeal No. 509 of 1994 filed by Murid Hussain appellant is hereby dismissed with the modifications mentioned in the preceding paragraph of this judgment.

20. As the sentence of death passed against Murid Hussain appellant has been upheld and confirmed by this Court, therefore, Murder Reference No. 193 of 1994 is hereby answered in the affirmative.

The sentence of Death is confirmed.

N.H.Q./M-7/L

Appeal dismissed.