ABDUL RAZZAQ Versus THE STATE
M. NAEEMULLAH KHAN SHERWANI, J.‑‑‑ The way in which this appeal arises is this. Abdul Razzaq alias Zaka son of Hukam Dad, Sajid Mehmood alias Kaku son of Abdul Razzaq and Tayyab son of Abdul Razzaq were tried by a learned Additional Sessions Judge at Rawalpindi for committing murder of Maqsood Ahmad, brother of Chan Mehboob complainant. Learned Trial Judge by virtue of his judgment dated 8‑7‑1998 found Adbul Razzaq guilty of the said charge, convicted him under section 302(b), P.P.C. and sentenced him to death, with further direction to pay Rs.40,000 to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544‑A, Cr.P.C. or in default whereof to undergo simple imprisonment for six months. The said learned Judge, however, by giving benefit to Sajid Mehmood and Tayyab, of the charge.
2. Murder Reference No.452 of 1998 seeks confirmation of said sentence of death awarded to Abdul Razzaq convict where he has approached this Court by filing Criminal Appeal No. 177 of 1998 to call in question conviction and sentence passed against him by the said learned Judge. We propose to dispose of both these matters together through this single judgment.
3. The alleged incident had taken place on 19‑7‑1997 at 7‑00 p.m. in area of railway line near Zearat Pehlwan Shah Chowk Chiragh Din, Rawalpindi falling within the territorial jurisdiction of Police Station Civil Lines, Rawalpindi. The distance between the two places is about two kilometers. The matter was reported by Chan Mehboob (P.W.3), brother of Maqsood Ahmad deceased to Ijaz Hussain Shah, S. I (P.W.11) on the same day at 8‑15 p.m. when he was available at Civil Hospital, Rawalpindi. The police official as per dictation of the complainant reduced into writing complaint (Exh. P.C) and despatched the same to the Police Station through Ghulam Farid, Constable for formal registration of a case. Consequently upon receipt thereof at the Police Station, Muhammad Afzal Khan, A.S.I. (P.W.1) drew up F.I.R. (Exh.P.A) on the same day at 8‑40 p.m. correctly without any addition or substraction on his part.
4. Concisely facts of the prosecution case as expounded by the complainant in the abovesaid F.I.R. are that he alongwith his children is residing in Chaman Zar Colony and used to sell vermicelli. On the eventful evening at about 7‑00 p.m. he alongwith his brother Yaqub. Hussain was available at Zearat Pehlwan Shah near railway line. His brother Maqsood Ahmad in order to go to his shop left Chaman Zar Colony and when he reached the railway line, Abdul Razzaq alias Zaka armed rifle .12 bore gun, Sajid alias Kaku carrying a Danda and Tayyab empty‑handed came there while hurling abuses. Sajid alias Kaku and Tayyab exhorted a Lalkara to the effect that they will teach a lesson to Maqsood Ahmad for abusing them. Abdul Razzaq alias Zaka fired a shot through his gun landing at the chest of Maqsood Ahmad who fell prone. He, alongwith Yaqub Hussain raised hue and cry which attracted Raja Fazal‑ur‑Rehman and Faisal Rehman residents of Chaman Zar Colony who also witnessed the occurrence. The accused levanted from the spot.
Motive behind the occurrence is that on the eventful evening at 6‑00 p.m. Yaqub Hussain, younger brother of the complainant and Tayyab quarreled with each other. Maqsood Ahmad used hot words for Abdul Razzaq and his two sons. Due to this grudge the accused after having counseled with each other pounced upon Maqsood Ahmad and committed his mactation. In this way the complainant set the State functionaries into motion by getting the abovesaid case registered against the offenders.
5. As it was a heinous murder crime, Syed Ijaz Hussain Shah, S.I (P.W.11) took over the uphill task of investigation. As he was available in Civil Hospital, Rawalpindi so he deputed Gul Khan, Constable (P.W.9) to guard against the dead body for post mortem examination after preparing injury statement (Exh. P.J) and inquest report (Exh.P.K). Thereafter, he reached the venue of occurrence, inspected the same during the course of collected blood‑stained pebbles, made them into a seated parcel and took the same into possession through memo. Exh.P.D, duly attested by Kamran Ihsan (P.W.4) and Zulfiqar P.W. (not produced). He then prepared rough site plan (Exh. P.L) of the place of occurrence.
On 20‑7‑1997 after post‑mortem examination of the deceased, Gul Khan (P.W.9) produced before him last worn bled‑stained clothes, Shalwar (P.5) Qamiz (P.6) and Bunyan (P.7) alongwith a sealed phial which were taken into possession by him through memo. (Exh. P.G). He issued instructions to Qamar‑ud‑Din Draftsman (P.W.2) to prepare site plan of the place of occurrence who accordingly on the pointation of the witnesses prepared site‑plan (Exh.P.B). On 25‑5‑1995 he was informed that the accused had surrendered themselves before Mr. Nasrullah Ranjha, Judicial Magistrate Rawalpindi. He reached the Court of said Magistrate and formally arrested them. During the course of interrogation, Abdul Razzaq appellant got recovered .12 bore gun (P.1), empty (P.2) and licence (P.3) which were taken into possession by him through memo. (Exh. P.E), duly attested by Muhammad Ashraf (P.W.7) and Muhammad Parvez (not produced). The Sajid accused while in police custody got recovered Danda (P.4) from premises of a boundary wall which was secured through memo. (Exh. P.F), duly attested by the same set of witnesses. He recorded statements of all the relevant witnesses under section 161, Cr.P.C. He then handed over the case property to Muhammad Latif, MHC (P.W.8) for keeping the same into safe custody and their onward transmission to the concerned quarters as per rules. After completion of investigation he prepared challan and submitted the same before the Court for trial of the accused in accordance with law.
6. Upon receipt of the challan, the Trial: Court subjected the same to necessary scrutiny, found it fit in all respects to proceed with the trial. Charge was framed and put to the accused to which they pleaded not guilty and claimed to be tried.
7. In these circumstances prosecution was called upon to adduce evidence of its choice against the accused to establish charge against them beyond any shadow of doubt. The prosecution ventured to produce as many as twelve witnesses.
8. Out of the whole lot, evidence of Chan Mehboob (P.W.3), Yaqub Hussain (P.W.6), Muhammad Ashraf (P.W.7) and Dr. Muhammad Shafique (P.W.10) is of most significance.
Chan Mehboob complainant (P.W.3) and Yaqub Hussain (P.W.6) are eye witnesses of the occurrence. They fully supported the prosecution version in their statements and confirmed various parts played by the accused during the course of occurrence. Muhammad Ashraf (P.W.7) appeared to prove the factum of recovery of .12 bore gun (P.1) at the instance of the appellant.
Dr. Muhammad Shafique (P.W.10) had conducted autopsy on the dead body of Maqsood Ahmad and found two fire‑arm injuries on his thorax region. According to him, he died due to haemorrhage and shock resulting from injury No. 1 which was declared sufficient to case death in the ordinary course of nature. He prepared post‑mortem report (Exh. P.H) and pictorial diagram (Exh. P.H/1).
9. Evidence of the remaining witnesses is of formal nature so their statements do not require to be brought under discussion.
10. Learned Prosecutor gave‑up remaining witnesses as being unnecessary and after tendering in evidence report of Chemical Examiner, Serologist, Forensic Science Laboratory (Exhs. P.J, P.K. and P.L) respectively, declared the prosecution case close.
11. The accused were then examined under section 342, C.P.C. to enable them to offer handsome explanation with regard to crime imputed to them. They proclaimed their absolute innocence‑in the matter and alleged their involvement in the case at the instance of Fazal‑ur‑Rehman and Faisal Rehman relatives of the complainant party who used to sell narcotics in the area. The appellant opted to make statement on oaths as envisaged by the relevant provisions of section 340(2), C.P.C. in disproof of accusation brought against him. He also opted to produce defence evidence. He made his statement on oath as well produced Mst. Farooq Sultana (D.W.1) and Faqir Muhammad Chaudhry (D.W.2) in order to prove his standpoint.
12. After fullest evaluation of facts and circumstances revolving around the matter, the learned Trial Judge pronounced verdict of guilt against the appellant as afore mentioned.
13. Learned counsel for the appellant in his attractive arguments to this Court puts the matter as under. He submits that all the prosecution witnesses are not only related inter se but also to the deceased. They were not present at the spot at the relevant time of occurrence. Complainant side cooked up story in the present form on the basis of guess, gossip etc. and at the instance of Fazal‑ur‑Rehman and Faisal Rehman, given up prosecution witnesses who were having strained relations with the appellant that motive is not proved and recovery was also doubtful, that defence version if truthful and reasonably possible and is supported by evidence of Mst. Farooq Sultana (D.W/1) and Faqir Muhammad Chaudhry (D.W.2). In the end he submits that prosecution had awfully failed to establish its case beyond any shadow of doubt against the appellant.
14. On the contrary, learned counsel for the State strenuously argues that it was a day time occurrence. Presence of the eye‑witnesses was natural. They have wholeheartedly supported the prosecution story. Motive is proved. Recovery of Gun (P.1) and empty lend full support to the prosecution version. Report of the Forensic Science Laboratory (Exh. P.L) is in the positive. He fully supports judgment of the Trial Court.
15. We have with much care and attention heard and considered respective arguments of both the sides and also gone through the evidence word by word and letter by letter with a view to ascertain truth of the, matter. We find that occurrence took place on 19‑7‑1997 at about 7‑00 p.m. when sufficient sunlight was available. There was absolutely no visional obstruction at all. Things could well be seen by the witnesses. Chan Mehboob complainant who happens to be real brother of the deceased had seen the occurrence by himself alongwith others. The event had happened in his immediate presence, so he had acquired full knowledge of facts and circumstances of the case. He without further loss of time established contact with Ijaz Hussain Shah (P.W.11) who recorded complaint (Exh. P.C) as per his dictation at 8‑I5 p.m. at Civil Hospital, Rawalpindi and despatched the same to the police station for formal registration of a case. Consequent upon receipt of complaint (Exh. P.C) Muhammad Afzal Khan, A.S.I. (P.W.1) drew up F.I.R. (Exh. P.A) at 8‑40 p.m. It is a case of promptly lodged F.I.R. and it proves that witnesses were available at the spot. We take F.I.R. as a legitimate document. Both the eye‑witnesses namely Chan Mehboob (P.W.3) and Yaqub Hussain (P.W.6) furnished full details of the occurrence in their statements before the Trial Court. They brought specified accusations against the appellant of firing by a gun at the deceased. Examination or contents of posts‑mortem report indicate that this was a highly dangerous wound causing extensive damage to the vital organs of deceased. The victim of assault did not take much time to die. The appellant brought his gun from his house and made use of the same recklessly for producing fatal injuries on the deceased The only intention was to kill. witnesses corroborated each other. Their statements are confirmed by the medical evidence. They have no previous ill‑will, grudge or grouse against the appellant to rope him falsely in this case. They were subjected to a lengthy cross‑examination by the defence which failed to make any gain out of that exercise. Both the witnesses agree in their testimony. They had means for gaining correct information and they had no interest in concealing the truth. We hold that their evidence does not suffer from any serious lacuna or defect and they are wholly reliable witnesses. They had afforded sufficient jurisdiction for their availability at the spot.
15. As regards defence version it does not ring tune and does not fit in with the circumstances of the case. It appears to be a cob web of lies. All that has been stated by the defence witnesses is a patent falsehood. Their testimony has been rightly discarded by the learned Trial Court: Learned counsel for the appellant failed to demonstrate, in any manner, that this case was by all means a fit case for award of lesser sentence. We have not been able to find any mitigating factor in this case. Motive has been distinctly mentioned in the F.I.R. and circumstances are available on the surface of evidence of this case which internally urged the appellant to take this drastic step of killing an innocent person.
16. For all these reasons we dismiss this appeal. His all convictions and sentences are maintained. Death sentence is confirmed and murder reference answered in the affirmative.
H.B.T./A‑646/L Appeal dismissed.