MUHAMMAD ASLAM Versus THE STATE
KHAWAJA MUHAMMAD SHARIF, J. ‑‑‑This judgment will dispose of Criminal Appeal No.28 of 1995 filed by Muhammad Aslam appellant who was convicted under section 302/34, P.P.C. and was sentenced to undergo death for the murder of Abdul Hameed and Mst. Anwar Mai by Judge Special Court for Suppression of Terrorist Activities, Bahawalpur on 29‑11‑1995. He was fined to Rs. 10,000 (ten thousand) or in default one year R. I. He was also sentenced to pay compensation amounting to Rs. 20,000 (twenty thousand) under section 544‑A, Cr.P.C. to the legal heirs of the deceased, in default six months' R.I. He was also convicted under section 302/34, P.P.C for the murder of Mst. Anwar Mai and was sentenced to imprisonment for life with a fine of Rs. 10,000 or in default thereof one year R.I. For causing injuries on the person of Dilshad minor son of the complainant, he was convicted under section 324, P.P.C. and was sentenced to undergo 4 years' R.I. with a fine of Rs.5,000 (five thousand) or in default thereof three months' R.I.
2. It may also be noted here that his co- accused Muhammad Ashiq, who was his first cousin, was murdered before the trial of this case and third accused stated to be an unknown in the F.I.R., was never arrested in this case.
3. The occurrence in this case took place between the nights of 14/15‑8‑1992 in the house of the deceased Abdul Hameed, situated in village Uttera, 3‑1/2 k.m. away from the Police Station Samma Satta, District Bahawalpur. Matter was reported to the police on the same night by Abdul Karim, real son of Abdul Hameed deceased at 1‑30 a.m. on 15‑8‑1992.
4. The brief facts of the case as narrated by the complainant Abdul Karim in the F.I.R. Exh.P.A/1 are that he awakened at 11‑45 p.m. at the noise of dogs barking while his parents namely Abdul Hameed and Mst. Anwer Mai were also sleeping there in front of residential room on different cots. His son Dilshad Ahmad was also sleeping with his father. He picked up torch and in the light of torch and moon‑lit, he found there Aslam accused armed with kalashnikov alongwith one Muhammad Ashiq armed with Kalashnikov and a third unknown person who was armed with .12 bore gun. Muhammad Aslam accused fired at his father whereas Muhammad Ashiq his co‑accused fired at his mother Mst. Anwer Mai. His father received injuries on his head, neck and chest caused by Muhammad Aslam while firing of Muhammad Ashiq hit his mother on her chest. One fire made by Muhammad Aslam accused hit on the right ankle of his minor son namely Dilshad Ahmad. On his hue and cry Fateh Muhammad, Bashir Ahmad and Rahim Bakhsh P.Ws. attracted to the spot. Muhammad Aslam end Ashiq accused shouted that they had taken the revenge of the marriage of Mst. Anwar Mai with Abdul Hameed, Mst. Anwar Mai and father of the complainant died at the spot due to firing of Aslam and Ashiq accused. The accused ran away from the spot.
5. Motive behind this occurrence was that Mst. Anwar Mai was first married with real uncle of Aslam and Ashiq and she after getting divorce had married with his father Abdul Hameed about two years before the occurrence.
6. After completion of necessary formalities the A.S.‑I. Abdul Hakeem visited the spot end collected blood‑stained earth from underneath the dead bodies of the deceased vide memo. Exh.P.B. and Exh.P.C. respectively. He also took into possession empty cartridges vide memo. Exh.P.D. and clothes of both the deceased were also taken into possession vide memo. Exh.P.E. and Exh.P.F. Site plan Exh.P.M was also prepared by the Investigating Officer. There were also reports of Chemical Examiner, Exh.P.Q. and that of Serologist Exh.P.R. The appellant was arrested in this case on 31‑1‑1995.
7. Prosecution in order to prove its case produced 15 witnesses in all. Amongst them there were three eye‑witnesses namely Abdul Karim, complainant in the' instant case examined as P.W.2, Fateh Muhammad P.W.3 the first cousin of the complainant while third eye‑witness namely Bashir Ahmad was given up. There was also statement of Dr. Muhammad Aslam Qamar who was examined as P.W.8, and had medically examined Dilshad Ahmad minor son of the complainant (not produced) and also conducted post‑mortem examination on the dead bodies of the two deceased on 15‑8‑1992.
8. Learned counsel for the appellant has read before us the evidence of the prosecution and statement of the appellant recorded under section 342, Cr.P.C. He submits that it was an unseen occurrence, that on the barking of dogs only master Abdul Karim went to the house of the deceased. Even from the adjacent house or from inside the house of the deceased no body came to the place of occurrence. He further submits that Fateh Muhammad who claimed to be an eye‑witness of this case even did not come to the spot on hearing the barking of dogs but he came at the spot after hearing the fire shots and hue and cry of Abdul Karim P.W. That no motive whatsoever has been proved by the prosecution, that nothing incriminating was recovered from the appellant during the course of investigation, that there is no proof that Mst. Anwar Mai got divorce from the uncle of Muhammad Aslam appellant and thereafter entered into nikah according to Muslim Rites with Abdul Hameed deceased because neither any divorce deed nor any Nikahnama between Abdul Hameed deceased and Mst. Anwar Mai was produced. Learned counsel for the appellant submits that in fact motive in this case is shrouded in mystery. He further submits that without conceding but for the sake of arguments if it is admitted/proved that it was the appellant who had killed the deceased Abdul Hameed and Mst. Anwar Mai alongwith his co‑accused Muhammad Ashiq (since dead) to take the revenge of his family honour, so in this view of the matter, death sentence is not called for in the instant case. He also submits that no witness of marriage contracted between the deceased Abdul Hameed and Mst. Anwar Mai has been produced by the prosecution. He further submits that ocular account is not corroborated by medical evidence.
9. On other hand learned State Counsel assisted by the learned counsel for the complainant submits that appellant was a proclaimed offender, that there are two deceased in this case, that there was previous background of enmity between the parties. Learned counsel for the complainant submits that the appellant was also involved in 15/16 other cases of criminal nature and was involved in heinous offences like dacoity, robbery, murder and illicit arms. Both of them support the judgment of the learned trial Court.
10. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case occurrence had taken place in the house of Abdul Hameed deceased. Abdul Karim P.W. (complainant) is son of the deceased, he lives in front of the house of the deceased. After hearing the barking of the dogs he came to the spot having a torch in his hand. It was also a moon‑lit night, he saw the appellant and his co‑accused Muhammad Ashiq (since dead) and one unknown person armed with kalashnikov. Both Muhammad Aslam appellant and Muhammad Ashiq (since dead) fired with kalashnikov and the death of the two deceased was instantaneous. The duration between and the time of occurrence is 12 to 13 hours which also coincides with the time of occurrence. Mere relationship is no criteria to discard the prosecution evidence. Abdul Karim P.W. is the most natural witness, he has also described the motive in the F.I.R. and also before the trial Court. Fateh Muhammad P.W. also lived near the place of occurrence and after hearing the hue and cry of Abdul Karim P.W. complainant he also came at the spot, he saw the appellant Muhammad, Aslam end Muhammad Ashiq (since dead) at the place of occurrence having Kalashnikov in their hands. Occurrence in this case took place on the midnight of 14/15‑8‑1992 at 11‑45 p.m. and matter was reported to the police within 45 minutes. It was case of promptly lodged F.I.R. There was no question of substitution and three crime empties were also taken into possession by the police from the place of occurrence. After the occurrence the appellant became absconder and he was arrested on 31‑1‑1995 i.e. about 2 years and 5 months after the occurrence. Proceedings under section 87/88, Cr.P.C. were also initiated against Muhammad Aslam appellant and this fact was proved by Bashir Ahmad (H.C.) P.W.15. There was no previous background of enmity between the parties. The ocular account as stated above is corroborated by medical evidence. Motive furnished by the complainant and Fateh Muhammad P.W. is corroborated by long abscondence of the appellant.
11. Keeping in view the above discussion, we are of the considered opinion that the prosecution has proved its case against the appellant beyond any shadow of doubt and this is not even a case of mitigating circumstances in which lesser penalty can be awarded to the appellant. Learned trial Court was right in convicting the appellant under section 302/34, P.P.C for causing death of Abdul Hameed and Mst. Anwar Mai. Death sentence awarded to the appellant under section 302/34, P.P.C. by the trial Court is confirmed. However, conviction and sentence awarded to the appellant under section 324, P.P.C. for causing injuries on the person of Dilshad Ahmad Minor (P.W.) is set aside for the reason that Dilshad Ahmad was not product by the prosecution. There is no merit in this appeal and the same is dismissed.
Death sentence awarded to the appellant by the learned trial Court is confirmed.
N.H.Q./M‑50/L
Death sentence confirmed.