ZAFAR IQBAL Versus State
CH. IFTIKHAR HUSSAIN, J.‑‑‑ Zafar Iqbal son of Balia Caste Rehmania Sial resident of Chak No.30/14‑L, Tehsil Chichawatni, District Sahiwal was tried under section 302 read with section 34, P.P.C. in case F.I.R. No. 132 registered with Police Station, Shah Kot on 6‑9‑1993 for on the same day i.e. 6‑9‑1993 at about 5‑00 p.m. while armed with rifle in his village along with his brother Asadullah and cousin Ikhlaq Hussain, in furtherance of their common intention committing the ,Qatl‑e‑Amd of deceased Tasawar Hussain by firing two rifle shots at him resulting into his death.
2. On the conclusion of the trial, he was found guilty of the charge and so vide the judgment rendered on 30‑10‑1999 by Syed Ijaz Hussain, the learned Additional Sessions Judge, Chichawatni, was convicted under section 302(b), P.P.C. and sentenced to death subject to confirmation by this Court and to pay compensation Rs.50,000 to the legal heirs of the deceased under section 544‑A, Cr.P.C. and in default thereof to suffer one year rigorous imprisonment.
3. He feeling himself aggrieved of the impugned judgment of his conviction and sentence has assailed the same by way of the above mentioned Criminal Appeal (No.402 of 1999).
4. The learned trial Court has submitted the afore‑mentioned Murder Reference (No. 188 of 2000) to this Court for confirmation of his sentence as required tinder section 374, Cr.P.C.
5. As both these matters have arisen out of the one and the same Judgment in the case, hence are being disposed of by this single judgment.
6. Briefly the facts relevant for the disposal of both these matters are that the said case has been registered on the statement Exh. P. B. of complainant Azad Hussain (P.W.2). The same was recorded at the Police Station by Ghulam Muhammad S.I./S.H.O. of that police station (P. W.8).
7. He has mentioned therein that he is resident of the aforesaid village and is a Zamindar. On that day i.e. 6‑9‑1993, at the about 5‑00 p.m. he along with his uncle Rehamtullah and Sarang Ali, caste Rehmania Sial, co‑villager were standing in front of the Baithek of Rehmatullah: All of a sudden there arose alarm. They all the three on the same rushed to tile front street. They saw there that his brother Tasawar Hussain was going to his Dera from the house, Zafar Iqbal armed with rifle, his brother Asadullah empty handed and Ikhlaq Hussain son of Murad empty handed were standing in front of their house in the street. Asadullah and Ikhlaq Hussain raised lalkara that Tasawar Hussain be not spared. He in their view fired with his rifle at Tasawar Hussain, which hit him at his left arm and he rashed towards them. Thereupon, Zafar Iqbal made smother shot at him, which hit on tile left back side of his chest. He fell down and succumbed to his injuries instantaneously. Oil their noise, the accused ran away towards the South.
8. The motive behind the occurrence is that their sister Afsar Bibi was engaged to Asadullah accused. They broke their engagement about 1‑1/2 years ago and they settled her engagement in Kamalia. On the same, there had taken place quarrel between Tasawar Hussain deceased, Asadullah and his brother Zafar Iqbal. Tasawar Hussain fractured the leg of Asadullah and thereupon a case was registered against him. The accused had grudge of the breakage of the said engagement and fracture of the leg of Asadullah. On account of the same, they in furtherance of their common intention have committed tile Qatal‑e‑Amd of his deceased brother Tasawar Hussain.
9. The said S.I./S.H.O. after recording his statement had read it over to hint and he signed the same in token of it's correctness.
10. He, thereafter visited the spot and inspected the dead body of the deceased and prepared Inquest Report Exh.P.F. and Injury Statement Exh. P. G.
He dispatched the dead body to the mortuary through Zafar Iqbal constable (P.W.5). Dr. Saeed Iqbal (P.W.11) conducted autopsy on the same on 7‑9‑2003 at about 7‑30 a.m. The details thereof will be mentioned ahead. He (S.I.) then collected the blood‑stained earth front the spot and scaled it into a parcel and took into possession vide memo. Exh. P.C. He also took into possession blood‑stained Cot P.1 from the spot vide memo. Exh.P.D. He recorded the statement under section 161. Cr.P.C. of the witnesses.
11. The next day, after the post‑mortem examination, the aforesaid constable produced before him the last worn blood‑stained shirt P.2, Shalwar P.3 and Vest P.4 of the deceased and he took these into possession vide. memo. Exh.P.E. The appellant after the occurrence had absconded. He on 11‑10‑1993, got issued warrants of arrest against him and entrusted the same to Ahmed Yar, A.S.‑I. (P.W.4) for execution. The, said A.S.‑I. on. 13‑11‑1993, returned his warrants of arrest to him unexecuted. He then got issued proclamation against him. The investigation, thereafter, was transferred from him to Mirza Qasim Baig, DSP, (P.W.10). He visited the spot and carried out the investigation at the spot. He recommended to challan the appellant and his co‑accused to Court.
12. Fazal Karim, S.I. (P.W.9) on 8‑1‑1996, had arrested the appellant from Ittehad Colony, Peshawar. He recovered .222 rifle P.5 along with 20 live cartridges P.6/1‑20 from him. He took these into possession vide recovery memo. Exh.P.K. He recorded the statement under section 161, Cr.P.C. of the witnesses of the recovery.
13. Aamir Zaman, S.I. (P.W.12) got the appellant transferred to Sahiwal from Peshawar and sent him to the judicial lock up under the order of the Illaqa Magistrate. He on the conclusion of the investigation was challaned to the Court.
14. He was formally charged under section 302, read with section 34, P.P.C. He pleaded not guilty.
15. The prosecution at his trial examined it's 12 witnesses in all. They were Muhammad Saeed Akhtar Draftsman (P.W.1), Azad Hussain Complainant (P.W.2), Rehmatullah (P.W.3), Ahmad Yar, S.I. (P.W.4), Zafar Iqbal Constable (P.W.5), Manzoor Ahmad S.‑I. (P.W.6), Mansoor Ahmad Constable (P.W.7). Ghulam Muhammad‑I/Investigating Officer (P.W.8) Fazal Karim S.‑I. (P.W.9), Mirza Qasim Baig DSP (P.W.10), Dr. Saeed Iqbal (P.W.11) and Aamir Zaman S.‑I. (P.W.12). The report of the Chemical Examiner Exh.P.M. and that of Serologist Exh.P.N. Were tendered in the evidence.
16. The appellant in his examination under section 342, Cr.P.C. had denied the allegation appearing against him in the prosecution evidence. He had pleaded that he had falsely been involved in the instant case due to enmity. The P.Ws. are not only related inter se and to the deceased but also inimical towards him clue to civil and criminal litigation. The occurrence was un‑witnessed; having taken place in the darkness and assailant was not known. He learnt about the same at Peshawar very late and on account of threat from the complainant party did not come to Sahiwal for his safety. The police in collusion with the complainant party had got involved him and his brother Asadullah and Ikhlaq Hussain in the instant case. He neither opted to produce evidence in his defence nor to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
17. The learned trial Court after hearing the parties found him guilty of the charge of the Qatal‑e‑Amd of the deceased and convicted and sentenced him as mentioned above.
18. It has been contended on his behalf that the eye‑witnesses were not only related inter se and to the deceased but were also inimical towards him and chance witnesses as well as so they could not be relied upon and the learned trial Court has erred in relying upon him; that the medical evidence is inconsistent to the ocular testimony; that the motive part of the story of the prosecution suffered from inherent contradiction and so it has been proved on the record against him; and that in any case the prosecution could not prove it's case against him beyond any reasonable shadow of doubt. The alternative plea has been raised by him that if it may be believed that the prosecution has succeeded in proving the charge against him, he then does not deserve death sentence as he has acted under the command of his elder brother and so deserves lesser penalty than death.
19. On the other hand, the learned State counsel assisted by the learned counsel for the complainant has supported the impugned judgment saying that the eye‑witnesses account rendered by complainant Azad Hussain and P.W. Rehmatullah is consistent on all the material particulars of the prosecution case; that they were natural witnesses of the incident; that their presence at the spot stood established on the record; that their account of the occurrence is fully supported by the medical evidence; that the motive set up by the prosecution against the appellant stood proved‑on the record; and‑that he has committed the cold blooded murder of the deceased by repeating fire at him resulting into his death and the plea of acting under the command of his elder brother in committing the Qatl‑e‑Amd of the deceased is of no benefit to him in view of the case of Muhammad Nawaz and Muhammad Asif v. The State (2001 SCMR 1605).
20. We have carefully considered the submissions made from both the sides with the help of available record.
21. The prosecution in support of it's case against the appellant has mainly relied upon it's ocular testimony, medical evidence and the motive.
22. The learned trial Court has relied upon the ocular testimony of the. prosecution supported/corroborated by the medical evidence and the motive, while rejected the plea of innocence of the appellant.
23. The ocular account of the prosecution has been unfolded by complainant Azad Hussain (P.W.2) and Rehmatullah (P.W.3). They no doubt are nephew and cousin respectively to each other. Azad Hussain complainant is the real brother of the deceased and Rehmatullah again his real uncle. So, they were also closely related to him. It is important to note here that the appellant is also related to them. This has so been mentioned by complainant Azad Hussain in his examination‑in‑chief. This thus shows that these witnesses and the appellant are also related to each other.
24. No doubt there existed background of enmity between the parties. It was over the dissolution of marriage between Mst. Afsar Bibi, the sister of the complainant with Asadullah, the real brother of the appellant. It was also on account of criminal case in respect of fractures of leg of Asadullah by deceased Tasawar Hussain. There was also civil and criminal litigation between them even prior to the occurrence. It means that the parties were inimically disposed towards each other even prior to the occurrence. It but here goes without saying that enmity is a double edge weapon. If it prompts one to cause harm to his adversary, the same may also give rise occasion to other to involve his enemy falsely. However, the effect of enmity in the instant case is to be viewed and analyzed in it's own perspective.
25. In the instant case complainant Azad Hussain has mentioned that the appellant's side has grudge against them on account of dissolution of marriage between his sister and Asadullah, the brother of the appellant and fracture of his leg by the deceased and on account of the same they have committed the Qatl‑e‑Amd of his deceased brother.
26. So, according to the prosecution the enmity between the parties over those two counts had played as factor with the appellant's side to do away with the deceased. This in fact is the motive set up by the prosecution against the appellant to commit his Qatl‑e‑Amd. We will discuss this part of the matter in detail when we will be taking up the motive part of the prosecution story against the appellant. Here we confine our discussion in respect of the ocular account furnished by the two above mentioned eye‑witnesses.
27. They both have narrated the incident. They were consistent on all the material details of the same i.e. the time, venue, the name of the appellant, the weapon carried by him, the manner in which the incident had happened and the names of the eye‑witnesses. There is absolutely no contradiction in them on these aspects of the prosecution case. It may be mentioned here that certain discrepancies of minor nature have been brought out by the appellant's side in the cross‑examination of these witnesses. Even certain contradictions have been brought to light by his side inter se their statements. These were insignificant and no material to diminish the value or the level of credibility of their deposition. This carried no adverse affect qua the question of reliability of their testimony. Hence we do not feel it necessary to discuss these at any greater length. However, they were unanimous almost on all the above indicated material particulars of their respective depositions. The same has inspired confidence to us as the occurrence was of daylight. It had taken place at 5‑00 p.m. on the relevant day. These were the early days of the month of September in the days of occurrence. The venue was in the street in front of the house of Rehmatullah P.W. The appellant's side has not been able to successfully show that the venue was not the same as mentioned by them.
28. They both have stated that they and Sarang Ali P.W. (given up) were present outside the Baithak of Rehmatullah. The presence of Rehmatullah P.W. in front of his Baithak at the above‑mentioned time was not at all an abnormal thing or unbelievable. It rather, was quite probable and believable.
29. Complainant Azad Hussain is his real nephew. It has come in his evidence that he also lived close to that place. He in the cross examination has mentioned that his house is at a distance of about 70/80 Karams, from the house of his uncle Rehamtullah towards it's south. The distance of 70/80 Karams is not such that his presence at that place could be doubted. Sarang Ali is also related to them. He is also uncle of the complainant. So, his presence along with his nephew in front of the Baithak of his brother Rehmatullah P.W. was also quite a probable event.
30. It may be mentioned here that it was argued by the appellant's side that both the complainant and Sarang Ali were chance, witnesses. Since, Sarang Ali has not been produced by the prosecution, so we do not feel the necessity to discuss this contention of the appellant qua him. As regards complainant Azad Hussain, he has given the cause of his presence at the Baithak of his uncle Rehmatullah at the given time along with Sarang Ali P.W. According to him, they both had gone to the Baithak of Rehmatullah to know about 'fertilizer, who deals in the same for the last 10/15 years. The complainant is the villager and cultivator by profession as stated by him in the F.I.R. Exh.P.B. as well his statement at the trial as P.W.2. So, his going to his uncle Rehmatullah P.W. in that connection was an ordinary thing and not at all an extraordinary or abnormal.
31. His presence, thus at the Baithak of his uncle Rehmatullah P.W. then was quite probable while Rehmatullah is the natural witness of the incident being the resident of the place. So, the presence of both these eye‑witnesses at the spot at the given time has been found by us to be quite probable and believable. There has been found no legitimate reason to doubt the same. The contention of the appellant's side therefore, in this regard is without any force and the same is repelled.
32. Their presence at the spot when has been found to be quite probable and they were also related to the appellant, their testimony, therefore, could not be ignored simply for the reason that there existed background of enmity between them and the appellant's side.
33. Due to their presence at the spot having been found by us to be quite probable and particularly Rehmatullah P.W. to be the natural witness of the incident and the occurrence of day time in front of his house and there being consistency and unanimity in their depositions, they have been found to be quite reliable witnesses. The contention of the appellant's side that they were related inter se and to the deceased and were, inimical towards him and so were worthy of placing no reliance is without any force. The same is repelled. We, therefore, have found that the learned trial Court has rightly placed reliance upon their testimony.
34. The prosecution has sought support/corroboration to their testimony by the medical evidence. The stance of the learned counsel for the appellant is that the medical evidence has not furnished support/corroboration to their testimony. The same is without any force. It is because of the fact that Dr. Muhammad Saeed Iqbal has found the following injuries of the dead body on the deceased:‑‑
(1) A fire‑arm wound 1 x 1/2 c.m. in deep going on back of left side of chest. This was wound of entrance.
(2) A fire‑arm wound 3 x 2 c.m. going deep into lower of sternum. This was an exit wound of Injury No. 1.
(3) A fire‑arm wound 1 c.m. c.m. on the left forearm going deep 6 x c.m. below the left elbow. This is wound of entrance.
(4) A fire‑arm wound 3 c.m. x 2 c.m. can on the medial side of left elbow. This was exit wound of Injury. No. 3.
35. According to him, these were anti‑mortem and with fire‑arm and Injury No.1 was sufficient to cause death in the ordinary course of nature. He has given .the probable, duration between the injuries and death as immediate and between the death and the post‑mortem examination within 15 hours.
36. The two eye‑witnesses have mentioned that the appellant with rifle fired first shot at. the deceased, which hit him at his left arm and the other shot at his left side of the back of the chest, who succumbed to his injuries instantaneously.
37. The locale of the injuries mentioned by the doctor in his evidence having been found on the dead body of the deceased and time of their infliction and that of occurring of his death really commensurates with the stance of the eye‑witnesses in this regard.
38. The incident had taken place on 6‑9‑1993 at about 5‑00 p.m. The said doctor has proved the post‑mortem report Exh.P.L. to be correct carbon copy of the original and to be in his hand and signed by him and Exh.P.L.1/Exh.P.L./2 to be Diagram of the injuries. According to Exh.P.L. the post‑mortem examination was conducted on the dead body of the deceased at 7‑30 a.m. on 7‑9‑1993. It, thus, was after about 14‑1/2 hours of the incident: The doctor has given this time as within 15 hours. So, the same too tallies with the stance of the eye‑witnesses in, that regard.
39. The doctor was cross‑examined at some length but there was found nothing in his cross‑examination to say that there was any inconsistency in his deposition in the matter and that of the eye‑witnesses. It rather, is fully in line with the ocular testimony. It. has supported the same to a considerable length. The learned trial Court therefore, has rightly received it to be so. The contention of the appellant's side in this regard, thus is repelled.
40. The motive part of the prosecution story has been furnished by complainant Azad Hussain. Though he is the sole witness of the prosecution, who has furnished the details regarding that part of it's story. The appellant's side has not at all denied the same. He further, has admitted the marriage between Afsar Bibi, the sister of the deceased and Asadullah his brother. He Was put the prosecution allegation in the evidence that Mst. Afsar Bibi was given in Nikah to Asadullah and relation between them became strained and so their Nikah/marriage was dissolved and she was married at Kamalia 1‑1/2 years prior to the occurrence. He did not clearly deny the same. He was also put the fact in the evidence of Azad Hussain complainant that in the quarrel, the deceased had caused the fracture of leg of Asadullah. He did not clearly deny the same These facts rather, have been admitted by him in a way. So, the prosecution stood succeeded in proving the motive set up by it against him There is not the least doubt that such a motive can play in one's killing Asadullah was the brother of the appellant The appellant, therefore, had the motive to take away the life of the deceased. The learned trial Court, therefore, has rightly received the motive part of the prosecution story to have been proved against him. The same was also rightly received as a circumstance in corroboration to the ocular account against the appellant. The contention of his side in this regard is without any force and the same is repelled.
41. Another circumstance, which has appeared in the evidence against the appellant is his absconscion. He as per the evidence of Azad Hussain complainant was not traceable after the incident. According to him he remained absconder for about 2/2‑1/2 years.
42. Ahmad Yar, A.S.‑I. (P.W.4) has stated that he had searched for him and despite his best efforts he could not be traced out. He obtained his warrants of arrest Exh.P.W.4/A. The same shows that the appellant had fled away after the incident. He could not be traced out by the Investigating Officer. So, the warrant for his arrest was obtained but still he was not arrested and consequently Ghulam Muhammad Investigating Officer (P.W.8) got issued proclamation against him. So, he was declared proclaimed offender and could not be arrested till .8‑1‑1996. It was more than two years after the incident He was arrested from Peshawar, by Fazal Karim. S.‑I. (P.W.9). The appellant in his examination under section 342, Cr.P.C. has not at all denied the factum of his being fugitive from law and arrest from Peshawar. He has mentioned that oil account of threat from the complainant party, he did not come to Sahiwal. He, however, has admitted that he was arrested by Amir Zaman, S.‑I. (P.W.10) from Peshawar. So, it has unambiguously been proved oil the record that he after the incident had absconded and remained fugitive from law for more than two, years. His absconsion is strong indication of his guilty intent in the matter. Had he not been guilty, he would have appeared before the police aid faced the allegation against him.
43. His abscondence for a considerable period, therefore, is a circumstance ill corroboration to the allegation in the ocular testimony of the Qatl‑e‑Amd of the deceased against him.
44. We, therefore, have found that in view of the ocular testimony corroborated by the medical evidence, motive and circumstances of his abscondence, the charge of the Qatl‑e‑Amd of the deceased against him stood proved to the hilt. He, therefore, was rightly convicted under section 302(b), P.P.C. for the Qatl‑e‑Amd of the deceased.
45. He did repeat the fire with rifle to the deceased when the latter had intended to run away as per the testimony of tile eye‑witnesses. He, therefore, appeared to have intended to commit his Qatl‑e‑Amd in all cases. There, thus existed no legitimate circumstance in his favour for awarding him lesser penalty.
46. The plea of his having acted under tile command of his elder brother is of no avail to him in view of the case of Muhammad Nawaz and Muhammad Asif v. The State (2001 SCMR 1605). We, therefore, find that the award of death sentence to him was perfectly alright in the Facts and circumstances of the case.
47. We, therefore, maintain his conviction and sentence except that he in the event of his failure to pay the compensation to the legal heirs of deceased shall suffer six months simple imprisonment instead of one year rigorous imprisonment. His appeal, thus fails and the same is dismissed.
48. The Murder Reference is answered in the affirmative . The death sentence is confirmed.
H.B.T./Z‑51/L Appeal dismissed.