MUHAMMAD NAWAZ Versus THE STATE

TANVIR BASHIR ANSARI, J.‑‑‑ Muhammad Nawaz appellant was tried under section 302, P.P.C. by the learned Judge Special Court for Suppression of Terrorist Activities, Bahawalpur Division Bahawalpur, whereby, he was awarded death sentence under section 302(b), P.P.C. vide judgment, dated 30‑9‑1999. He was also directed to pay compensation of Rs. 60,000 under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to undergo 6 months S. I.

2. Against his conviction, the appellant has filed the instant appeal.

3. F.I.R. No. 12 of 1998 dated 12‑1‑1998 was registered under section 302, P.P.C. at Police Station Faqeerwali upon the complaint of Mushtaq Ahmad P.W.1. According to the prosecution case, the complainant on 12‑1‑1998 at 1‑30 p.m. visited the Oil Agency at Dehranwala Fortabbas Road which is situated within the area of Chak No.433/6‑R as usual to get the cash from his son Ishtiaq Afzal deceased who ran the business of an Oil Agency in the partnership with Munawar Hussain P.W.3. Upon reaching the oil Agency, the complainant found Ishtiaq Afzal deceased alongwith Munawar Hussain P. W .3 and Tariq Jat (given up P.W.) present in the shop. At about 1‑30 p. m. the accused turned up on a motorcycle, and. asked the deceased as to why he had not yet closed his business of Oil Agency, though he was directed to do so earlier and that he would now see to it. Soon thereafter, he went to the house of his sister Mst. Perveen Bibi alias Peeno which was situated nearby. In the meanwhile, a bus bound for Fort Abbas reached there and Ishtiaq Afzal made Tariq Jat to board it. As soon as the bus started off, the deceased returned to the Agency where he was intercepted on the way by the accused who was then armed with .a rifle. He gave a Lalkara that he would teach him a lesson for not closing the Oil Agency and simultaneously, caused a fire shot with his rifle which hit Ishtiaq Afzal on his left leg and went across the other leg as well. Ishtiaq Afzal fell flown having been seriously injured. At that tire, Aman Ullah P.W.2 and Nasrullah Khan (given up P.W.) also reached there. Muhammad Nawaz accused alongwith his rifle ran away to the house of his sister. The complainant alongwith other witnesses lifted the deceased who was in a precarious condition and proceeded to the police station when on the sway, Ishtiaq Afzal died due to injuries.

4. On 2‑3‑1999, the accused was charge‑sheeted under section 302, P.P.C. to which he pleaded not guilty and claimed trial.

5. To prove its case, the prosecution examined Mushtaq Ahmad, complainant P.W.1, Aman Ullah P.W.2, Munawar Hussain P.W.3, Abdul Jabbar, H.C. P.W.4, Muhammad Saleem Shehzad, Sub‑Engineer P.W.5, Rehmat Shah, S.‑I./Investigating Officer P.W.6, Dr. Riaz Ahmad, Medical Officer P.W.7, Sharafat Ali, S.‑I. P.W.8 and Muhammad Sarwar, Constable P.W.9. The ocular account was rendered by P.W.1 to P.W.3, the site plan was prepared by P.W.5, investigation was conducted by P.W.6 and P.W.8 and medical evidence was provided by P.W.7. The other witnesses were formal in nature.

6. Dr. Riaz Ahmad P.W.7 conducted the autopsy on the dead body of Ishtiaq Afzal on 12‑1‑1998 and found the following lacerated and oblique injuries on his person:‑‑

(1) 5 c.m. x 3 c. m. at postero lateral aspect of right thigh.

(2) 1.25 c.m. x 1 c.m. at inner aspect of right thigh.

(3) 1.25 c.m. x 1 c.m. at antero lateral aspect of left thigh.

(4) 3 c.m. x 2 c.m. at inner aspect of left thigh.

In his opinion, the cause of death was haemorrhage and shock due to hypovolemia as excessive loss of blood from the ruptured femoral vein which was sufficient to cause death in ordinary course of life. It was a homicidal cage caused by fire arm weapon. The distance between the barrel and body was more than 3 feet as there were no burning or tatooing. All the injuries were ante‑mortem and homicidal in nature. The probable time between injuries and death was within one hour and between death and post mortem within six hours. The post‑mortem report and its pictorial diagram are Exh.P.K. and Exh.P.K./1.

7. Rehmat Shah, S.‑I. P.W.6 after the registration of the F.I.R. prepared injury statement Exh.P.G. and inquest report of the deceased Exh.P.H. He sent the dead body to the mortuary' for autopsy. He thereafter proceeded to the spot and secured blood stained earth Exh.P.C. and empty bullet Exh.P.D. On 14‑1‑1998, he secured the last worn clothes of the deceased vide memo. Exh.P.B. and got the site plans Exh.P.F. and Exh.P.F./1 prepared by Saleem Shahzad, Sub‑Engineer P:W.5. Sharafat Ali, S.‑I. P.W.8 arrested the accused on 15‑2‑1998. The accused led to the recovery of 8 mm rifle P.5 alongwith 5 bullets P.6/1‑5 which were sealed and secured vide memo. Exh.P.E. attested by Aman Ullah P.W.2 and Munawar Hussain P.W.3. The rifle and live bullets were deposited with Abdul Jabbar, Moharrir P.W.4 for safe custody. On 10‑2‑1998, he handed over the same to Muhammad Sarwar P.W.9 for delivering in the office of Forensic Science Laboratory who delivered the same. On 12‑1‑1998, P.W.4 was entrusted with a sealed parcel of blood‑stained earth and another sealed parcel of an empty bullet for safe custody. On 21‑1‑1998, he handed over both these parcels to P.W.9 Muhammad Sarwar for their onward transmission to the office of Chemical Examiner and F.S.L. which he deposited the same on the next day in the concerned office.

8. The appellant in his statement under section 342, Cr.P.C. denied the mode of occurrence as alleged by the prosecution. On the other hand, he maintained that he had found Ishtiaq Afzal in the house of his sister where the deceased was attempting to commit Zina with his niece. It was on account of sudden provocation and Ghairat and also in order to save the honour of his niece that he had caused a tire shot on the legs of Ishtiaq Afzal who ran and fell outside the house where he remained unattended and thereafter expired. According to the accused, he himself appeared at the police station but his statement was not recorded. However, the appellant did not examine himself on oath but produced two witnesses in his defence. D.W.1 Mst. Munazza the niece of the accused and D.W.2 Muhammad Boota were examined in support of the defence version.

9. After going through the evidence of the parties, the learned trial Court convicted the accused/appellant under section 302(b), P. P. C. and sentenced him as indicated hereinbefore.

10. We have considered the arguments addressed by both the learned counsel for the parties and have examined the entire evidence on the record with their assistance.

11. The ocular evidence produced by the prosecution comprises of the statements of Mushtaq Ahmad complainant P.W.1, /Aman Ullah P.W.2 and Munawar Hussain P.W.3. The complainant Mushtaq Ahmad P.W.1 is the father of the deceased. He fully corroborated the case as narrated in the F. I. R. According to his testimony, Ishtiaq Afzal ran the business of Oil Agency in the partnership of Munawar Hussain P.W.3. On the day of occurrence, he had gone to the Oil Agency at about 1‑30 p.m. to receive cash from his son Ishtiaq Afzal who was present in the shop alongwith Munawar Hussain P.W.3 and Tariq Jat. After a while, the accused came on 4,motorcycle and threatened the deceased with serious consequences as he (deceased) had not closed the Agency despite having been told to do so. Thereafter, the accused went to house of his sister Mst. Perveen Bibi which was nearby. Ishtiaq Afzal in the meanwhile was returning after leaving. Tariq Jat, at the bus stop when the accused who had returned armed with a rifle from his sister's house, accosted the deceased near a Puly and caused a fatal fire‑arm shot which hit him on his left leg and went across and through the other leg. According to P. W.1, the occurrence took place within his view and was also witnessed by Munawar Hussain, Aman Ullah and Nasrullah (given up P.W.). The injured was picked up by them and was being taken to the Police Station Faqirwali when he succumbed to his injuries.

Aman Ullah P.W.2 gave eye‑witness account of the occurrence and corroborated the statement of P.W.1. Similarly, Munawar Hussain P.W.3, who is the 3rd eye‑witness also corroborated the statements of P.W.1 and P.W.2 in all material detail of the occurrence. Both P.W.2 and P.W.3 were the witnesses of the securing of blood‑stained earth from the place of occurrence and had signed Exh.P.C. Both P.W.2 and P.W.3 were also the witnesses of securing crime-empty by the Investigating Officer and had signed Exh.P.D. They were also witnesses of the recovery of 8 mm rifle on the pointation of the accused and were the signatories of Exh.P.E.

All the three eye‑witnesses were subjected to lengthy cross‑examination but nothing could be elucidated thereby which could discredit their evidence.

12. P.W.5 is the Sub‑Engineer Baldia Haroonabad who prepared the site plans of the place of occurrence vide Exh.P.F. and Exh.P.F./1. The said witness had specifically mentioned the place where the deceased was hit by the fire shot. He was not suggested in cross‑examination that the blood‑stained earth was removed from inside the house of Mst. Perveen Bibi.

13. The investigation of, the case was conducted by Rehmat Shah, S.‑I. P.W.6. He prepared the injury statement and the inquest report, and despatched the dead body for autopsy. He also prepared the site plan Exh. P.J. He removed the blood‑stained earth from the place of occurrence and secured the same vide Exh.P.C. which was signed by P.W.2 and P.W.3 as witnesses. Similarly, the crime‑empty was secured vide Exh.P.D. which was similar signed by the abovementioned two witnesses.

P.W.8 Sharafat Ali, S.‑I. recovered the 8 mm rifle and five live bullets at the pointation of the accused and recovered the same vide Exh.P.E. which was signed by Aman Ullah and Munawar Hussain P.Ws.

14. The medical evidence comprised of the statement of Dr. Riaz Ahmad P.W.7, his report and pictorial diagram Exh.P.K. and Exh.P.K./1. The medical evidence fully supported the eye‑witness account of the occurrence inasmuch as it confirmed that the, injuries were the result of a single gun shot entering from left thigh at outer aspect and escaping from medial aspect and re‑entering in the right thigh and escaping at postrolateral aspect. The cause of death was haemorrhage and shock due to hypovolemia as excessive loss of blood from the ruptured femoral vein which was sufficient to cause death in the ordinary course.

15. The accused on the other hand did not deny having caused a fire shot on the legs of the deceased which ultimately proved to be fatal. However, the mode of occurrence has been given by the accused in his statement under section 342, Cr.P.C. according to which, he had visited the house of his sister Mst. Perveen Bibi alongwith his friend Muhammad Asif on a motorcycle who had his licensed rifle with him. He found that there was commotion in and around the house of his sister where people were gathering. According to him, when he entered the house alongwith said Asif, he saw the deceased who was attempting to commit Zina with his 13/14 years old niece Mst. Munazza and that she was partly naked. The accused tried to stop the deceased, upon which, the deceased abused him. It was on account of grave and sudden provocation and also on account of Ghairat and to save the honour of the niece that the accused fired at the legs of the deceased. According to him, deceased went out of the house and fell down where he remained for many hours.

16. In order to prove the defence version, Mst. Munazza D.W.1 and Muhammad Boot D.W.2 were produced. Although, she made a statement to this effect in her examination‑in‑chief, however, the said statement does not inspire any confidence in view of her statement in cross‑examination where she neither stated to have suffered any injury herself nor was her Shalwar which was allegedly torn was produced before the police. She also admitted that the accused did not accompany them when they went to the police station. According to her, he had gone to his mother's house.

The statement of D.W.1 that the deceased was shot at inside the house was belied by the statement of Muhammad Boota D. W.2 who stated that:‑‑

He further deposed that the girl (D.W.1) was shouting inside the house but she was wearing her clothes.

17. It is also pertinent to notice that the defence neither produced Muhammad Asif nor the alleged rifle belonging to the said Asif. On the other hand, according to the report of the F. S. L., the crime‑empty secured from the place of occurrence matched with 8 mm rifle recovered from the house of Mst. Perveen Bibi at the pointation of the accused.

18. The prosecution has produced cogent, ocular evidence which has been corroborated by the medical evidence and the evidence of recoveries. On the other hand the defence has not been able to establish its version as set up in the statement under section 342, Cr.P.C. The evidence of D.W. and D.W.2 is self‑contradictory in material detail and cannot, be safely relied upon. We are satisfied through examination of the prosecution evidence when placed in juxtaposition with the defence version that the prosecution has been able to prove its case effectively whereas the defence has failed to prove its version.

19. The learned counsel for the appellant was at pains to contend that the prosecution has failed to prove the motive against the accused. He submitted that if motive as alleged by the prosecution is not proved, the defence version must be believed. In this context, it was urged that there was nothing on the record to show if really any bona fide business of Oil Agency was being conducted by the deceased and if so whether there was any reason whatsoever for the accused to have opposed the same to the extent of even doing away with the life of the deceased.

The submission of the learned counsel for the appellant has no force. The motive is only a factor which helps in connecting the accused with the occurrence. The absence of motive cannot be used as a mitigating circumstance for the measure of e sentence to be imposed. It would rather go against the accused that he killed the deceased, although there was no serious motive for that. In the instant case, there is no need to look elsewhere except the record to connect the accused with the offence. The appellant has admitted having caused the occurrence, and the occurrence is not disputed. He has merely advanced a different mode and version of the occurrence. In such circumstances, it is incumbent for the defence to have positively proved the manner in which the occurrence is claimed to have taken place.

From the evidence on the record and for the reasons stated hereinbefore, the defence has failed to prove its version.

20. Having considered all the aspects of the case, we find that the charge against the accused/appellant has been proved by the prosecution beyond any reasonable doubt by producing cogent, ocular, recovery and medical evidence. We are unable to find any extenuating circumstances that can be urged in favour of the appellant.

21. Resultantly, this appeal is dismissed and the judgment of conviction of the appellant is maintained.

22. In view of the above, death sentence awarded to the appellant is confirmed.

Appeal dismissed.

N.H.Q./M‑1272/L