MUHAMMAD ASGHAR Versus THE STATE

Muhammad Asghar son of Ghulam Hussain has called‑in‑question the validity of the judgment, dated 10th of April, 1997 passed by the Sessions Judge, Mianwali, whereby he was convicted under section 302(b), P.P.C., for the murder of Muhammad Akram and was sentenced to life imprisonment and ordered to pay compensation of Rs.10,000 to the legal heirs of the deceased and in default of payment of the same to undergo R.I. for six months. Benefit of section 382‑B, Cr.P.C. was also extended.

2. The occurrence which resulted in the death of M. Akram took place in Khoo of Zareef Wala within the vicinity of Mauza Mochh at a distance of 3 furlongs from the Police Station Mochh District, Mianwali. Complaint was made by Mst. Mehr Khatoon, mother of the deceased on the same day which was recorded by one Ghulam Murtaza S.‑I./S.H.O., at the Police Station at 6‑45 p. m.

Allegation contained in the First Information Report lodged by Mst. Mehr Khatoon is that on the fateful day at 6‑25 p.m. she was going with her son namely Kaleem Ullah to make purchases from the shop and another son namely M. Akram after closing his shop was coming on his bicycle to the house and when he reached Khoo Zarifwala they saw Muhammad Asghar son of Ghulam Hussain armed with a .12 bore pistol who straightway fired on her son Muhammad Akram which hit him on his chest towards the right side who fell on the ground. Asghar alongwith his pistol ran away. In the meantime, Ghulam Muhammad son of Muhammad Moosa also came and sate the occurrence. M. Akram succumbed to the injuries at the spot.

4. Motive for the occurrence is that M. Asghar, appellant had illicit connections with the wife of Akram deceased and few days earlier Muhammad Akram deceased reprimanded M. Asghar for his immoral activities and in order to seek revenge Muhammad Asghar fired at her son and killed him.

5. Ghulam Murtaza, Investigating, Officer, after recording the complaint proceeded to the spot and after examining the dead body prepared the injury statement Exh.P.C: and Inquest Report Exh.P.D. and sent the dead body through a constable to the mortuary for post‑mortem examination. He took in possession blood‑stained earth vide memo. Exh.P.G. and bicycle Exh.P3 belonging to the deceased through memo. Exh.P.H. On 31‑8‑1994 M. Asghar appellant was arrested and after interrogation he led the police to his Baithak and got recovered pistol Exh.P4 and a live cartridge Exh.P5 were secured vide memo. Exh.PJ.

6. Doctor Sher Ali Khan, Medical Officer, District Headquarters Hospital, Mianwali on 18‑8‑1999 at 7‑30 a.m. performed the post‑mortem examination on the dead body of Muhammad Akram deceased aged 25 years and found eight wounds about 1 c.m. x 1 c.m. each in an area of 19 c.m. x 13 c.m. on the front chest and lateral wall of right chest, one wound lateral to the nipple 5 c.m. and one wound 7 c.m. above the right nipple. There was also cartridge pressure skin deep wound 2 c.m. x 2 c.m., 4 c.m. below and lateral to nipple. The dispersion of the pellets was according to the diagram. The edges were also burnt of each wound. The edges of two wounds above the nipple were blackened, one injury on mid axillary line was burnt/blackened.

7. In the opinion of the doctor injuries led to haemorrhage and shock causing damage to vital organs like lungs, pulmonary artery and liver which resulted immediate death. Injuries were ante‑mortem and caused by fire arm, which were sufficient to cause death in the ordinary course of nature. Time that elapsed between injuries and the death was instantaneous and between death and post- mortem was 12 to 14 hours.

8. After submission of the challan in the Court, appellant was indicted, he denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 8 witnesses. Ocular testimony account was furnished by Mst. Mehr Khatoon, complainant as P.W.6 and Kaleem Ullah, brother of the deceased, as P.W.7.

9. Appellant when examined under section 342, Cr.P.C., stated that one Mst. Zuhra, sister of the deceased was given in Nikah to him prior to the occurrence and the complainant party pressurized him to divorce her to which he disagreed and on this account a case was foisted on him. He also denied the recovery of any weapon from him and stated that someone else killed the deceased and because of enmity mentioned above, he was falsely implicated.

10. Learned counsel for the appellant submitted that there was no independent witness who had seen the occurrence and there was discord between the medical and the ocular testimony which created dents in the prosecution case. To the contrary learned counsel for the State supported‑ the conviction and sentence recorded by the trial Judge.

11. I have considered the arguments of the respective counsel and have also gone through the record.

12. Mst. Mehr Khatoon, mother of the deceased stated that she along with another son Kaleem Ullah were going to buy edibles at the time of occurrence whereas, the deceased her son was coming to the house on his bicycle when ‑the occurrence took place. In the month of August at 6‑25 p.m. there is sufficient light, ruling out question of mistaken identity. At that time when the occurrence took place people usually go to buy provisions for preparing meals, as such presence of Mehr Khatoon being a lady of 50 years of age with her son Kaleem Ullah in the District Mianwali is nothing strange. Women folk usually do not go out alone and are accompanied by male relations. Presence of both the persons i.e., Mehr Khatoon and Kaleem Ullah is beyond shadow of doubt. Learned counsel for the appellant also did not advance argument that the witnesses were not present at the spot. The only criticism made was that the eye‑witnesses were closely related to the deceased, whereas, occurrence having taken place: in the Bazar and independent witnesses could have testified about the occurrence but non‑production of such witnesses has created doubt. In the first instance the interested witness is that witness who has some ulterior, motive to depose against the appellant by substituting him with the real culprits, such ulterior motive may be present for manifold reasons, one of them, which is most frequent be animosity. No such animosity or ill‑will has been brought on the record. Not even a single suggestion was put in the cross-examination to both these eye witnesses to elicit an answer that the witnesses were deposing because of grudge or rancour. Plea taken by the appellant that he was married to the sister of the deceased and that he, resisted the pressure of divorcing her, therefore; instant case was planted on him is outrightly absurd. Simple proof of marriage with the sister of the deceased would have been production of a Nikahnama which has not been done so. The plea is an afterthought and deserves no further dilation and is outrightly rejected. Undoubtedly the occurrence took place in the busy bazar and no one else has appeared as witness. The justification for this plea is the answer given by the Investigating. Officer namely Ghulam Murtaza which is to the effect that when he tried to associate the persons from neighbouring houses/shops, no one came forward as every one is wary not to poke his nose in the affairs of others to avoid vengeance. This is a complete answer to the argument of the learned counsel. In these days of increase in crime rate particularly when Kalashnikov Culture is on the rampage every one is reluctant to enter the witness‑box even if they have seen the occurrence. One of the ground of such an apathetic attitude is the lack of security provided by the Police.

13. The variance of the ocular testimony with the medical evidence is insignificant. The doctor in his cross‑examination has stated that the fire shot may have been fired from a distance of about 12 feet, on the other hand, witnesses have pointed out to the Draftsman the place from where the appellant fired to be roughly at a distance of about 20 feet. After the occurrence there are more impending and urgent matters to be attended to like taking the injured to the hospital and lodging a report at the Police Station, therefore, when the witnesses come back to the spot, memory as to when the deceased and the appellant were standing when the occurrence took place, gets blurred and some allowance has tobe given for slight discrepant account of the distance. In any case such minor distances can never have effect on the merits of the case and in no manner the ocular testimony can be said to be in discord with the medical evidence.

14. The appellant is lucky to have escaped capital punishment because the motive was not proved. It is a case of single accused with a promptly lodged F.I.R. and there was no earthly reason to spare the real culprit and substitute the appellant. Resultantly, the appeal is without any merit and is dismissed. The conviction recorded by the . Trial Judge vide his judgment, dated 10‑4‑1997 is maintained.

N.H.Q./M‑282/L

Appeal dismissed.