MUHAMMAD ARSHAD Versus State
RAUF AHMAD SHEIKH, J.--- The appellant has assailed the vires of judgment dated 28-2-2007 passed by the learned Additional Sessions Judge, D.G.Khan in case F.I.R. No.163 of 2006 dated 26-10-2006 Police Station Derkhuwast Jamal Khan, District Dera Ghazi Khan (Sessions case No.19/Sessions Trial No.28 of 2006) whereby he was convicted under section 302, P.P.C. and was sentenced to death with an order to pay a sum of Rs.100,000 as compensation to the legal heirs of deceased, Ghulam Farid under section 44-A, Cr.P.C. The learned trial court has also submitted Murder Reference No.306 of 2007 seeking confirmation or otherwise of the death penalty awarded to the appellant. As both these matters are interlinked and interconnected so are being taken up and disposed of together through this single judgment.
2. Briefly stated the prosecution version as set forth in the F.I.R. Exh.PA/1 recorded on the statement (Exh.PA) of Muhammad Arif son of Ghulam Farid caste Jogiani aged 25/26 years, a cultivator by profession resident of Allah Abad Colony, D.G.Khan are that his father Ghulam Farid, a retired Subedar Major of the Army migrated from his Chak Dawadra and started living in his bungalow situated in Allah Abad Colony, D.G.Khan. Muhammad Arshad appellant, who is elder brother of the complainant, had made a demand from his father for sale of the bungalow and payment of his share in the sale proceeds but his father had refused on which Muhammad Arshad got annoyed and went to his native village Chak Dawadra from Allah Abad, D.G. Khan along with his children two days back. On 26-10-2010, the complainant, his father along with other members of the family came to their native village Chak Nawan Janubi to pick cotton. At about 10-00 a.m. his father was supervising the cotton picking, while standing on the bank of khal and in the meanwhile, he saw that the appellant suddenly arrived behind his father and made a fire, which landed on the back of Ghulam Farid. In the meanwhile Faiz Muhammad son of Wahid Bakhsh, Liaqat son of Khadim Hussain and Ghulam Sarwar son of Gul Muhammad all Jogiani by caste and residents of Nawan Janubi came there, who tried to apprehend the appellant but he fled away along with his gun. They tried to remove Ghulam Farid to Choti Hospital but he succumbed to the injuries. After investigation the appellant was sent up to face trial. He was charged under section 302, P.P.C. He pleaded not guilty and claimed the trial.
3. The prosecution has produced nine witnesses in addition to the documentary evidence to prove its allegations against the appellant. Dr. Khalid Nawaz P.W.9 had conducted the autopsy of the dead body on 26-10-2006. He found following injuries on his person:--
"(i) 8 wounds of entry of average size 0.6 cm x 0.5 cm were situated and spreading on both chest backs. Margin was inverted but no blacking was present.
(ii) 1 Wound of exit of size 1 cm x o.6 cm was situated on left anterior chest 5 cm above the nipple. Margin was averted.
(iii) Wound of exit of size 9 mm x 6 mm was present on the left lateral shoulder. Margins were averted. Contusion or bruise was present around the wound of exit. Right scapula was fractured."
He opined that the injuries were ante-mortem and caused with fire-arm. The probable duration between injuries and death was 15 to 30 hours and between death and postmortem was 8 to 10 hours. He has proved the postmortem report Exh.PC and pictorial diagrams PL/1 and PL/2 and his signatures on application Exh.PF and inquest report Exh.PG.
4. The complainant appeared as P.W.1 and almost reiterated the contents of his statement Exh.PA. Liaqat Ali P.W.2 stated that on 26-10-2006 at about 10-00 a.m. he along with Haji Faiz Muhammad, Ghulam Sarwar and Arif was present at the place of occurrence. Muhammad Arshad accused/appellant while armed with gun came there and had hidden himself in the bushes. He made a fire shot which hit the deceased on his back. They tried to apprehend him but he fled away. He further stated that the appellant committed the murder because of the dispute over property, which was a Kothi (Bungalow). The witness has also proved the memo of recovery Exh.PB, whereby the police had secured the blood-stained earth from the place of occurrence, Memo. Exh.PC regarding securing of empty cartridge Exh.P-1 and the memo of recovery of Exh.PD whereby the last worn clothes of the deceased viz Kamez Shalwar and Bunian stained with blood were secured.
5. Naseem Raza ASI had proved the formal F.I.R. Exh.PA/1. P.W.4 stated that he handed over two sealed parcels, containing blood-stained earth and empty cartridge to Sabir Hussain, C-1021 on 5-11-2006. P.W.6 has stated that on 6-11-2006 the appellant/accused made a disclosure and led to the recovery of .12 bore gun P-5 from a "Khola" adjacent to the room where Peter Engine was installed and the same was secured through memo of recovery Exh.PE attested by him. Rehmat Ullah Patwari has proved the scaled site-plan Exh.PK. P.W.7 Muhammad Ramzan S.-I. conducted the investigation of this case. He stated that he recorded statement of the complainant Exh.PA correctly and in token of its correctness the complainant put his signature on the same. He has proved the injury statement Exh.PF, inquest report Exh.PG, memo of recovery Exh.PB regarding securing of blood-stained earth, memo of recovery Exh.PC regarding securing of empty cartage P-1, site-plan Exh.PH, memo of recovery Exh.PD regarding securing of last worn clothes of deceased. The witness further stated that on 6-11-2006 the appellant while on physical remand made a disclosure and led to the recovery of .12 bore gun P-5 which he secured through memo Exh.PJ (Exh.PE). The prosecution has also produced the report of the Chemical Examiner Exh.PM, report of Serologist Exh.PM/1 and report of FSL Exh.PN.
6. The appellant/accused in his statement under section 342, Cr.P.C. admitted the prosecution allegations regarding causing Qatl-e-Amd of his father and recovery of the weapon of offence i.e. Gun P-5 on his disclosure and pointation. He, however, stated that he did not want to appear as witness under section 342(2), Cr.P.C. and relied upon his written statement submitted by him under section 265-F(5), Cr.P.C. After the conclusion of the trial the learned trial court proceeded on to convict and sentence the appellant as mentioned above.
7. We have heard the arguments advanced by Mr. Muhammad Asif Karim, learned Defence Counsel, at State expenses and Rana Abdul Majid, learned Additional Prosecutor-General and have also perused the record with their able assistance.
8. Learned Defence Counsel has vehemently contended that the appellant had made confession in form of his application under section 265-F(v) and in his statement under section 342, Cr.P.C. so the proof of Qatl-e-Amd liable to Qisas as provided under section 304(a), P.P.C., is available and the appellant could be punished under section 302(a), P.P.C. but the Qisas could not have been enforced because offence committed by him was not liable to Qisas in view of the provisions of section 306(c), P.P.C. as his two sons are Walis of their deceased father's father and are decedents of the appellant. In support of the contention reliance is placed on "Iftikhar-ul-Hassan v. (1) Israr Bashir (2) The State" (2007 PCr.LJ 470) and "Jehanzeb and another v. The State and others" (2003 SCMR 98).
9. On the other hand the learned Additional Prosecutor-General has contended that the prosecution evidence establishes beyond doubt that the appellant has committed Qatl-e-Amd of deceased Ghulam Farid so he was rightly convicted under section 302, P.P.C.
10. It was a broad-daylight occurrence which was promptly reported to the police. The complainant is a real brother of the appellant and son of the deceased. There was no reason for him to involve the appellant in the false case and give false evidence against him. Liaqat Ali P.W.2 has also fully supported the prosecution version regarding making of fire by the appellant with gun .12 bore and causing Qatl-e-Amd of the deceased. This witness is resident of the same village and equally related to the complainant and the appellant. There was no reason for him also to depose falsely. Both the P.Ws. inspire confidence. The medical evidence lends necessary corroboration to the ocular account. P.W.6 and 7 have proved that the appellant had made disclosure and led to the recovery of .12 bore gun P-5 which was secured through memo Exh.PE. Report of FSL shows that the empty recovered by P.W.7 in presence of P.W.2 was fired from the gun P-5, got recovered by the appellant. This also lends necessary corroboration to the ocular evidence. P.W.1 and P.W.2 have also proved that few days prior to the occurrence, the appellant made a demand for sale of the house and payment of his share which was not acceded to by the deceased so the appellant nourished a grudge and as such the motive alleged in the complaint is also established and proved.
11. The appellant in his statement under section 342, Cr.P.C. admitted that he has caused Qatl-e-Amd of the deceased. He had also submitted a written statement Exh.PF, wherein he had admitted the pro-secution version regarding occurrence and motive. In his statement under section 342, Cr.P.C. he had admitted that he led to the recovery of gun P-5 although in the cross-examination of P.Ws. his contention was that some unknown persons had committed Qatl-e-Amd of his father and thrown the dead body in the cotton crop and that P.W.1, his real brother, had deposed falsely as he wanted to contract marriage with his wife. This change in the plea appears to be an attempt to avoid the normal penalty and logical end of his criminal act i.e. capital punishment. The contention that his sons are Walis of the deceased and, as such, the Qisas could not be enforced for the offence committed by him is without force as his sons are not Walis of the deceased in presence of their paternal uncles. The confession was not made as required under the law and could have not been made basis for conviction under section 302-A, P.P.C. He has rightly been convicted under section 302(b), P.P.C. The learned counsel for the appellant has vehemently contended that the sentence awarded to the appellant is very harsh and excessive. It is admitted by the appellant himself and proved through reliable evidence adduced through trustworthy witnesses that few days prior to the occurrence the appellant made demand of sale of the house and payment of his share in proceeds which was declined by the deceased so the appellant nourished the grudge and came to his village. It is proved on the record that he followed the deceased in the fields and then caused his Qatl-e-Amd by making fire with .12 bore gun. It was a cold-blooded murder as no new event had taken place at the time of occurrence, which could have provoked him. In these circumstances the sentence awarded to the appellant does not appear to be harsh and excessive rather in absence of any mitigating circumstance, it is the normal sentence for commission of Qatl-e-Amd. The impugned judgment does not suffer from any illegality or infirmity. The appeal is without merits and same is hereby dismissed. The murder reference is answered in the affirmative.
H.B..T/M-248/L Appeal dismissed.