MUMRAIZ Versus State
MUHAMMAD ANWAARUL HAQ, J .---Mumraiz, appellant was tried in Case F.I.R. No.1, dated 2-1-2005, registered at Police Station Chakrala, District Mianwali in respect of an offence under section 302, P.P.C. After conclusion of trial, learned trial Court vide judgment dated 25-5-2005 has convicted the appellant under section 302(b), P.P.C. and sentenced him to 'Death' on two counts for committing Qatl-e-Amd of Fateh Khan and Muhammad Ameer. He was also directed to pay Rs.2,00,000 (Rupees two hundred thousands only) each as compensation to legal heirs of both the deceased under section 544-A, Cr.P.C. or in default whereof to undergo six months' S.I. each.
2. Feeling aggrieved, the appellant Mumraiz has challenged his conviction and sentence through Criminal Appeal No.162-J of 2005, whereas learned trial Court has transmitted Murder Reference No. 454 of 2005 for confirmation or othermiise of the 'DEATH' sentence of the appellant. Said Khan, complainant has filed Criminal Revision No.494 of 2005 for enhancement of compensation amount. All these matters being integrated are being disposed of together.
3. Prosecution case in brief unfolded in F.I.R. (Exh.PM) by Said Ameer, complainant (P.W.7) is that on 2-1-2005 at about 11-00 am he was trimming trees in his land located at Mangla Colony, Mauza Dhibba Karsial while his father Fateh Khan and brother Muhammad Ameer were grazing their goats there, meanwhile Mumraiz accused while armed with a pistol .30 bore came there from southern side and raised lalkara that he will teach a lesson to all of them for his insult and no one will be spared alive, he started making straight successive fire-shots with his pistol for the purpose of committing their murder, which hit at the head, right shoulder, upper part of the right as well as left thigh of his father, who fell down on the ground and Mumraiz accused went away. The complainant and his brother Muhammad Ameer shifting their father in injured condition to their house but at a short distance, Mumraiz accused again attracted and made straight successive fire shots at his brother Muhammad Ameer which hit on the left side of his back and the right shoulder, who fell down on the ground, thereafter, Mumraiz accused waiving his pistol, fled away from the place of occurrence. Muhammad Ameer succumbed to the injuries at the spot. The complainant, Mehr Khan and Muhammad Iqbal witnessed the occurrence; they shifted Fateh Khan in injured condition to District Headquarter Hospital, Mianwali where he also succumbed to the injuries.
The motive behind the occurrence was dispute of a Banna of land between the parties and one day prior to the occurrence Fateh Khan and Muhammad Ameer (deceased persons) had insulted Mumraiz appellant, due to that grudge, he had committed murder of Fateh Khan and Muhammad Ameer.
4. After registration of F.I.R., Muhammad Tahir, Inspector/S.H.O. (P.W.12) visited the places of murder of both the deceased, inspected the dead body of Muhammad Ameer, prepared his injury statement, inquest report and sent the dead body for autopsy. He also recorded statement of the P.Ws., sketched the rough site plan and secured blood-stained earth from both the places of murder of the deceased. In the District Headquarter Hospital, Mianwali, he inspected the dead body of Fateh Khan, prepared his injury statement, inquest report and sent the same for autopsy. On 27-1-2005 he arrested Mumraiz accused from the shrine of Ban Hafiz Jee. On 30-1-2005 during investigation of this case Mumraiz accused while in police custody led to the recovery of pistol .30 bore along with a magazine containing three bullets from his residential house.
5. On 2-1-2005 at about 8-30 pm, Dr. Maqbool Mubarik (P.W.4) conducted post mortem examination on the dead body of Muhammad Ameer and observed as under:--
(1) A firearm entry wound lx1 cm on front of right chest, 6 cm lateral to right nipple and 5 cm from right axilla.
(2) A firearm exit wound 1-1/2 x 2 cm on back of left chest, 11 cm from midline and 16 cm infer lateral to left axilla.
(3) A firearm entry wound 1 x 1 cm on the back of right fore-arm, 5 cm below of the tip of elbow. (A metallic foreign body corres-ponding to injury No.3 recovered from right upper arm sealed in the box and handed over to the police).
In his opinion cause of death was haemorrhage and shock in consequence of Injuries Nos.1 and 2, which badly damaged both lungs and thoracic aorta and were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem caused by a firearm.
The probable time between injuries and death was immediate whereas between death and post mortem 8 to 12 hours.
On the same day he also conducted the post mortem examination on the dead body of Fateh Khan and observed as under:--
(1) A firearm grazing wound 1 x 1-1/2 cm on the left side of skull, 10 cm above the left ear.
(2) A firearm wound of entry 1 x 1 cm on the front of Rt. shoulder, 10 cm above and lateral to Rt. nipple.
(3) A firearm exit wound of Injury No.2 1 x 1 cm on the front of Rt. Shoulder, 3 cm medial to Injury No.2.
(4) A firearm wound of entry 1 x 1 cm on the front of Rt. thigh 10 cm below inguinal ligament.
(5) A firearm wound of exit of injury No.4 on the back of Rt. thigh, 3 cm below right buttock.
(6) A firearm wound of entry 1 x 1 cm on the lateral surface of left buttock.
(7) A wound of exit of Injury No.6 1 x cm, 5 cm behind the Injury No.6.
In his opinion cause of death was haemorrhage and shock due to Injuries Nos. 4 and 5, which badly damaged the right femoral artery. Both the injuries were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem caused by a firearm.
The probable time between injuries and death was immediate whereas between death and post mortem 8 to 12 hours.
6. To substantiate the charge the prosecution has examined 12 witnesses in total out of which Dr. Maqbool Mubarik (P.W.4) provided medical evidence, Muhammad Tahir, Inspector/S.H.O. (P.W.12) conducted investigation of this case and Said Ameer, complainant (P.W.7) and Muhammad Iqbal (P.W.8) have furnished ocular account.
7. The appellant was examined under section 342 Cr.P.C. He denied the allegation and professed his innocence. While answering to question (Why this case against you and why the P.Ws. have deposed against you?) appellant replied as under:--
"Fateh Khan deceased and Muhammad Ameer deceased had a quarrel over the ownership of a tractor. Muhammad Aslam my brother is siding with Fateh Khan deceased being his son-in-law and brother-in-law of Muhammad Ameer deceased. I had enmity with my brother Muhammad Aslam. Fateh Khan and Muhammad Ameer deceased persons fired at each other and both sustained injuries and died. Muhammad Aslam my brother instigated Said Ameer P.W. to falsely involve me in this case and at his instigation, I have been falsely implicated in this case. Mehr Khan and Muhammad Iqbal P.Ws. have close relation with the deceased persons and their house is at a considerable distance from the place of occurrence. I am a joint owner of the land where the occurrence has taken place. There is no path near the place of occurrence and it had been shown in the site plan just to show the presence of the witnesses. There was no dispute of "Banna" with the deceased of mine. I produce copy of Jammabandi 2001-2002 Exh.DC of Mauza Dhibba Karsial and copy of an N.I.C. of my father Mark-A, copy of my own NIC mark-B, copy of my service certificate mark-C and photo copy of school certificate mark-D".
The appellant did not make statement under section 340(2), Cr.P.C., however, he produced Ghulam Jafar, Patwari Halqa (DW-1) in his defence. Learned trial Court vide its judgment-dated 25-5-2005 found the appellant Mumraiz, guilty and convicted and sentenced him as mentioned above, hence these matters before this Court.
8. Learned counsel for the appellant contends that the motive put forward by the prosecution was a dispute of Banna but no evidence in this respect has been produced and the same has not been proved, so in these circumstances it can be said that there was some other motive behind the occurrence which has been suppressed by the prosecution; that both the eye-witnesses are closely related to the deceased and no independent witness has been produced; that the presence of these witnesses at the place of occurrence is highly doubtful; that when both these witnesses appeared in the Court, they made certain discrepancies which indicate that they were not present at the place of occurrence; that P.W.7 has stated that appellant made fire from a distance of 3-Karams whereas P.W.8 stated that the fire was made from a distance of 55-Karams; that Investigating Officer did not find any trimmed branches of the trees whereas the complainant stated that he was cutting the trees when the occurrence took place; that F.I.R. has been registered after consultation and due deliberation; that medical evidence does not support the prosecution case; that a pistol .30-bore has shown to be recovered from the appellant but no crime empty was recovered from the place of occurrence; that as the motive is not proved and recovery does not support the prosecution case, the appellant is entitled for reduction in his sentence.
9. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that it is a daylight occurrence in which F.I.R. is promptly lodged; that appellant remained absconder for about one month; that two eyewitnesses produced by the prosecution have fully supported the prosecution version; that allegation of murder of both the deceased is categorically attributed only to the appellant; that presence of the witnesses at the place of occurrence is natural and fully explained by them; that substitution is a rare phenomenon especially in the cases of single accused and where the witnesses are closely related and have no reason to implicate an innocent person and leave the real culprit who has killed their near kith and kin; that the witnesses are consistent qua the time and place of occurrence; that minor discrepancies in the seat of certain injuries mentioned in the F.I.R. does not affect the prosecution case; that dimension of injuries indicate that single weapon has been used in the occurrence which support the prosecution case that it was only the appellant who committed this occurrence; that appellant fired many shots which landed on the vital parts of the deceased which indicate that he had all the intention to kill the deceased; that the motive part is fully proved and it was so suggested to the eyewitnesses that an altercation took place earlier to the instant occurrence in which the appellant and deceased exchanged hot words and slaps; that it has also come on record that the proceedings under sections 107 and 155, Cr.P.C. were initiated by the police between the parties, so the existence of dispute is proved through Exh.PN that even if the motive is not proved, the same cannot be considered as mitigating circumstance; that appellant has made up his mind for committing the occurrence after due deliberation; that the appellant is a mature person aging 51-years at the time of occurrence and he has committed a cold blooded murder of two innocent persons just on a trivial dispute and In these circumstances, appellant is not entitled to any leniency.
10. We have heard the arguments from both the sides and have perused the record carefully.
11. We have noticed that occurrence in this case took place at 11-00 a.m. in broad-daylight and matter was directly reported to the police station at 1-00 p.m. at a distance of about 22-Kms from the place of occurrence. It is a case of single accused and in promptly lodged F.I.R. all the details regarding the occurrence have been mentioned. Both the witnesses although related to the deceased but learned counsel for the appellant remained unable to point out any personal enmity or grudge of the witnesses against the appellant, even otherwise. It is by now well settled that mere relationship of the witnesses with the deceased is not enough to discredit their testimony unless they have some personal grudge of their own against the accused, in the case of Talib Hussain and others v. State and others 2009 SCMR 825 Hon'ble Supreme Court has observed as under:--
"An interested witness is one who is partisan or inimical towards accused or has a motive previously or cause of his own to falsely implicate the accused in crime--Mere relationship of a witness with the deceased or the very fact that he is interested in prosecution, would not dub him as an interested witness".
12. The close relationship of the witnesses with the deceased rather excludes any possibility of substitution in this case that is otherwise a rare phenomenon in the cases of single accused as it is not possible that the eye-witnesses could leave the actual culprit responsible for two murders of their very close relatives and would falsely implicate the appellant in this case. The plea of appellant that both the deceased had killed each other is just a flimsy and unfounded plea taken on his behalf. Both the deceased were father and son and the appellant remained totally failed to substantiate his plea so taken during the trial.
13. Ocular account in our view is consistent, trustworthy and reliable on all material aspects of the occurrence and it is further corroborated by medical evidence. We are not agreeing with the argument of the learned counsel for the appellant that medical evidence is in conflict with the ocular account only for the reason of some variation in describing the distance between the assailants and the accused by the eye-witnesses, minor discrepancies regarding the seat of certain injuries also do not affect the prosecution case at all as it is the case of the prosecution that the appellant made successive firing at both the deceased and there is no specific seat of injury ascribed in the F.I.R. Dimension of injuries indicate that single weapon has been used during the occurrence. Ocular account is further corroborated by very strong motive setup in the F.I.R. that an altercation took place one day prior to this occurrence between both the deceased and the appellant and he was annoyed on the same. Another circumstance against the appellant is his abscondance of 25 days and he remained fail to explain the same during the trial.
14. Non-sending of recovered bullet from the dead body of Muhammad Ameer (deceased) to the Forensic Science Laboratory for its comparison with the recovered pistol is necessarily a negligence on the part of the Investigating Officer and negligence of the Investigating Officer cannot be made basis for extension of any doubt to the appellant if case against him is otherwise proved beyond any shadow of doubt.
15. In view of the above, we are satisfied that finding of conviction and sentence of the appellant by the learned trial court is quite in accordance with law and is based upon well recognized principles of appreciation of evidence in a criminal case. Learned counsel for the appellant remained unable to point out any extenuating circumstance in this case calling for any mitigation in favour of the appellant. Act of the appellant and in the manner he committed this cold-blooded double murder over a small dispute, is shocking. It was suggested on behalf of the appellant in the evidence of P.W.7., that the appellant was slapped by the deceased a day prior to the occurrence and the appellant at the same time had slapped him in the same manner. Appellant was aged about 51-years at the time of occurrence and was not of immature mind and he fully knew the consequence of his successive fires with a pistol at both the deceased, in both parts of this unfortunate occurrence. Normal sentence in murder cases is death and Court is required to give reasons under section 367(5), Cr.P.C. for not awarding the same. The question of sentence in a murder case is of course a question of very vital importance and all the care and caution is required in this regard but it is equally important aspect of this matter that sentence of death cannot be altered on the basis of flimsy grounds and principle of proportionality cannot be lost sight. We are of the considered view that there is no extenuating circumstance available in favour of the appellant for extending him any benefit regarding his sentence, therefore his conviction and sentence under section 302(b), P.P.C. is maintained and his Criminal Appeal No.162-J of 2005 is, dismissed.
16. So far as Criminal Revision No. 494 of 2005 is concerned, in the peculiar circumstances of this case, we are satisfied that the awarded compensation to the legal heirs of the deceased by the learned trial court is quite adequate, hence this revision petition is also dismissed.
17. Resultantly death sentence awarded to Mumraiz, appellant on both counts is confirmed and Murder Reference (M.R. No. 454 of 2005) is answered in affirmative .
H.B.T./M-181/L Appeal dismissed.