MUHAMMAD ASIF Versus THE STATE
1. BASHIR A. MUJAHID, J.- - Muhammad Asif son of Bashir Ahmad has challenged judgment dated 13-11-1997 passed by learned Additional Sessions Judge, Jhang whereby he was convicted under section 302-B, P.P.C. for commission of murder of Mazhar Hussain and sentenced to death.
2. Briefly the facts of the prosecution case are that F.I.R. No.86, 1996 Exh.P.A/1 was registered at Police Station City Jhang on 27-3-1996 at 11-40 a.m. on the statement Exh.P.A of Javed Iqbal Zafar, P.W.7 (brother of the deceased) recorded by Abid Ghani, S.I/S.H.O. P.W.10 at 11-30 a.m. near Bab-e-Umar on the same day about the occurrence which took place at Basti Gogaywali at a distance of 1 k.m. from the police station alleging that the complainant was employee in an Insurance Company and Mazhar Hussain (deceased) was his brother and used to drive a Rikshaw. On 27-3-1996, at about 9-30 a.m. the complainant was present in his office. Ghulam Yasin his paternal cousin was also with him when Safdar Ali and Muhammad Bakhsh, P.W.8 arrived there and informed him that a little while ago they were sitting in a hotel at Ayub Chowk for having for having tea, where one Muhammad Shafi and Asif (appellant) were present and were talking to each other and Muhammad Shafi asked Muhammad Asif to kill Mazhar Hussain, Rikshaw Driver in order to take revenge of insult. It was further alleged that Mazhar Hussain (deceased) had told the complainant that two days ago some altercation had taken place between him and the accused Asif and Muhammad Shafi. The complainant alongwith prosecution witnesses proceeded from the office on motorcycle to inform Mazhar Hussain (deceased). . When they reached in Ayub Chowk, they were informed by a Rikshaw Driver that Mazhar Hussain had gone to Basti Gogaywali with the passenger. They were going to the said Basti and after reaching there they saw Rikshaw of the deceased proceeding on a Kacha Road and it was stopped at some distance from the brick-kilan of Malik Abdullah. Mazhar Hussain and Asif came out of Rikshaw and Asif accused fired two pistol shots at the deceased hitting on left side of his face, who fell on the ground. The P.Ws. tried to apprehend the accused but he fled away while firing in the air. They put the injured on a cot in order to take him to the hospital but he succumbed to the injuries. The motive alleged for the occurrence was that two days before the present occurrence, some altercation had taken place between the deceased, Asif and Shafi accused as Asif accused wanted some woman to take alongwith him in a Rikshaw which was refused by the deceased. On which a quarrel had taken place between them but the matter was patched up due to intervention of Rikshaw Drivers, but the accused had nourished grudge in his mind.
3. Abid Ghani, S.I P.W.10 after recording the statement Exh.P.A sent the same to the police station for registration of the formal F.I.R. and he himself arrived at the place of occurrence and took the dead body of Mazhar Hussain into possession and prepared the injury statement Exh. P. H/3 and inquest report Exh.P.H/4 and dispatched the same for post-mortem examination through Ali Ahmad. Constable P.W.3. He secured the blood-stained earth from the place of occurrence through memo. Exh.P.F. and Rikshaw P.6 through memo. Exh.P.G. Ali Ahmad, FC P.W.3 produced the last worn clothes of the deceased before the Investigating Officer which was taken into possession through memo. Exh.P.C. On 20-5-1996, he arrested the accused and from his personal search, he took Pistol P.4 and three live cartridges P.5/1-3 into possession vide memo. Exh.P.E. He recorded the statements of the prosecution witnesses under section 161, Cr.P.C., completed the investigation and submitted the challan. The trial Court framed the charge which was denied by the accused who claimed the trial.
4. During the trial, the prosecution examined as many as 10 witnesses to prove the guilt of the accused.
5. The medical evidence was furnished by Dr. Attiq Ahmad, P.W.9, who on 27-3-1996 at 4-30 p.m. while posted as M.O. D.H.Q Hospital Jhang, conducted the post mortem examination and found the following injuries on the dead body of Mazhar Hussain:-
1. A fire-arm wound of entrance with inverted margin 1.3 x 1.3 c.m. on left cheek, 1.5 c.m. lateral to left angle of mouth.
2. A fire-arm wound of entrance with inverted margine 0.9 x 0.9 c.m. on left cheek, 1.2 c.m. above injury No.1. there was tattooing of skin in an area 10 x 8 c.m. on left cheek and left side of neck upper part.
6. In his opinion death was caused by haemorrhage and shock and injury to pharynx due to injuries Nos.1 and 2. Both injuries were anti-mortem and caused by fire-arm, and were sufficient to cause death in ordinary course of nature.
7. The ocular account was furnished by Javed Iqbal Zafar, P.W.7 who was complainant of the case. He supported the version of the F.I.R. and stated the motive of the occurrence. Muhammad Bakhsh, P.W.8 was also an eye-witness of the occurrence. He supported the prosecution story. His statement is in line with the statement of Javed Iqbal Zafar, P.W. 7 and stated that he was accompanying the complainant when he was the accused fired at the deceased and ran away from the spot when the P. Ws. tried to apprehend him. Muhammad Afzal Moharrar P.W.1 recorded the formal F. I. R. Exh. P.A/ 1. Muhammad Iqbal, F. C. P. W .2 had deposited the sealed parcels in Police Malkhana handed over to him by the Investigating Officer from the place of occurrence. Ali Ahmad, Constable P.W.3 had escorted the dead body for post-mortem examination and produced last worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.C. Mapal Khan, P.W.4 had prepared the site plan of the place of occurrence. Jave Khizar, H.C. P.W. 6 had kept the sealed parcel in safe custody deposited by the Investigating Officer.
8. The prosecution evidence was closed icy tendering in evidence report of Chemical Examiner Exh.P.K and that of Serologist Exh.P.L.
9. The statement of the accused/ appellant was recorded under section 342, Cr.P.C. towards the end of the trial. He denied the allegation and claimed his innocence and false involvement.
10. The trial culminated into conviction of the appellant as mentioned above. He has challenged his conviction and sentence through Criminal Appeal No.54-J of 1998 while the trial Court has sent up Murder Reference No.305 of 1997 for confirmation of his death sentence under section 374, Cr.P.C. Both the matters are being decided by this single judgment.
11. Learned counsel for the appellant has argued that motive alleged by the prosecution has not been proved and the same is shrouded in mystery that the prosecution witnesses are Interested and inimical and their statements have not been corroborated from any other independent source that there is clear contradiction in medical evidence and the ocular account as from the dimension and seat of the injuries, it appears that the same were result of single shot having fired from the front while the eye-witnesses stated that the deceased was fired at two shots by the accused/appellant from the back that the recovery of weapon offence is immaterial as no empty was taken into possession from the spot that the ocular account has not been corroborated from any other independent source and the case against the appellant is doubtful and he be acquitted from the charge by giving benefit of doubt.
12. Conversely, the appeal has been opposed by the learned counsel for the State, Who has supported the impugned judgment.
13. Heard. Record perused.
14. The occurrence took place at 9-30 a.m. and statement Exh.P.A was got recorded at 11-30 a.m. at Bab-e-Umer Chowk on the same day. The appellant was nominated accused in promptly recorded F.I.R. It was a daylight occurrence. The complainant Javed Iqbal Zafar, P.W.7 and Muhammad Bakhsh P.W.8 have no animosity to falsely implicate the appellant or stitution by letting off the real culprits. Muhammad Bakhsh P.W.8 has no blood relation with the complainant or the deceased. He is an independent and impartial witness. The presence of Javed Iqbal Zafar complainant/P.W.7 and Muhammad Bakhsh, P.W.8 at the spot has been sufficiently explained and established. They are truthful and their testimony is confidence-inspiring. According to the statement of Dr. Attiq Ahmad, P.W.9 who conducted the post mortem examination, the deceased received two injuries caused by fire-arm and were sufficient to cause death in ordinary course of nature. However, it was clarified by the doctor that both the injuries could not be the result of different bore of fire-arms and the seat of the injuries was on check of the deceased. In site plan Exh.P.D, the accused was at point No.2 wherefrom he fired at the deceased who was at point No. 1 and we do not find any conflict in medical evidence and the ocular account. The testimony of the eye witnesses has been fully corroborated by medical evidence. It is by now settled law that absence or weakness of the motive is immaterial. Sometime people commit murder even without motive. In this regard reliance can be placed on 1999 SCMR 1668 and 2001 SCMR 1334. The appellant was arrested on 20-5-1996 when the occurrence took place on 27-3-1996 and he failed to furnish any explanation for his being absent. It is correct that in absence of recovery of any empty from the spot the recovery of weapon of offence cannot be considered as corroborative evidence but the prosecution case otherwise has been proved by ocular account corroborated by medical evidence. The investigation was conducted impartially and there was no allegation on behalf of the appellant for dishonest investigation, therefore, after deep re-appraisal of the evidence, we are convinced that the prosecution has proved its case against the appellant beyond any shadow of doubt and there is no ground to interfere in the conviction recorded or the sentence awarded against him. Resultantly Criminal Appeal No.54-J of 1998 filed by the appellant is dismissed having no force. His conviction and sentence is maintained. Death sentence is confirmed.
15. Murder Reference is answered in affirmative.
16. H.B.T./M-1025/L Appeal dismissed.