MUHAMMAD RIAZ Versus THE STATE

1. MUHAMMAD NAWAZ ABBASI, J. ‑‑‑This jail petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred seeking leave to appeal against the judgment dated 15‑8‑2001 passed by a Division Bench of Lahore High Court, Rawalpindi Bench, through which criminal appeal filed by the petitioner and the murder reference sent by the trial Court for confirmation of death sentence awarded to the petitioner, were disposed of. The petitioner namely Muhammad Riaz, was tried for the charge under section 302, P.P.C. for causing murder of Fazal Hussain, his son‑in‑law and upon conviction vide judgment dated 20‑11‑1995, was sentenced to death. In addition he was fined to Rs.25,000 which was directed to be paid on realization as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. and in default of payment of fine was directed to undergo R.I. for two years. The conviction and sentence of the petitioner was maintained by the High Court in Criminal Appeal No.225 of 1995 filed by the petitioner and murder reference sent by the trial Court under section 374, Cr.P.C. was answered in the affirmative. The occurrence in the present case took place at 8‑30 a.m. on 1‑8‑1994 in village Prairh Chhoi within the area of Police Station Choa Saidan Shah, District Chakwal. The report of the occurrence was lodged on the same day by Mst. Hadayat Bibi, mother of Fazal Hussain (deceased) who was husband of Mst. Kausar Bibi, real daughter of the petitioner. The essential facts as supplied by the first informant and incorporated in the F.I.R. are that on the fateful day at about 8‑30 a.m. she in the company of her two sons namely Fazal Hussain (deceased), Mazhar Hussain and Mst. Kausar Bibi, wife of Fazal Hussain (deceased) was present in her house when Muhammad Riaz armed with .12 bore gun while appearing at the scene exhorted Lalkara to teach a lesson to Fazal Hussain for solemnizing marriage with Mst. Kausar Bibi, his daughter, against his will and fired two successive shots at Fazal Hussain which hit on his legs and right arm. The motive for the occurrence as stated in the F.I.R. was that petitioner was not inclined to give hand of his daughter to Fazal Hussain but the marriage of Mst. Kausar Parveen, daughter of petitioner with Fazal Hussain, was solemnized in his absence and in consequence thereto he became revengeful against the deceased.

2. The accused in his statement under section 342, Cr.P.C. while denying the charge pleaded false implication and in answer to a question made the following reply:‑‑

3. "My real brother Mulazim Hussain abducted one Khalidi Begum and afterwards in between the parties compromise was effected with the condition that Mulazim Hussain would give the hand of one girl in marriage with the brother of said Khalidi Begum. Mulazim Hussain insisted me to fulfil this condition and requested that Kauser Bibi may be married with the brother of Khalidi Begum. I retaliated with my full vigor. Mulazim Hussain nursed a grudge against me and threatened me for the consequences and I was afraid of Mulazim Hussain and I escaped from village and engaged Kauser Bibi with Fazal Hussain deceased. I asked my wife that she might arrange the marriage in my absence because I being poor fellow could not arrange dowry articles and could not face the kith and kin and other villagers, so marriage of Kauser Bibi was performed in my absence. Mulazim Hussain threatened me that he would kill me if I appeared in the village. Mulazim Hussain was a sworn enemy of the deceased due to his marriage with Kauser Bibi. I suspect that he himself or with the help of some hired person had killed the deceased with his licensed gun."

4. Dr. Qazi Zahid‑ul‑Hassan, (P.W.1) having conducted post mortem on the dead body of the deceased traced the following injuries on his person:‑

(1) Two fire‑arm wounds each 1/2 c.m. x 1/2 c.m. x inverted margins (entry wounds) in area 7 c.m. x 4 c.m. on front and medial side of right forearm and 17 c.m. from the right wrist joint. Both wounds were 6 c.m. apart from each other. There was no blackening and scorching. The wounds were going to the left and slightly upwards. There was no exit wounds of these fire‑arm wounds.

(2) A group of multiple fire‑arm wounds in area 34 c.m. x 25 c.m. on front and outer side of right thigh each 1/2 c.m. x 1/2 c.m. inverted margins (entry wounds), directed backward, medially and slightly upwards. There was no blackening and scorching present. There were corresponding holes in wearing clothes. Right thigh was swollen than left thigh because of entrant bleeding due to perforation of vessels in right thing. Some fire‑ arm projectiles were felt under the skin on posterior side of right thing but there was no exit wound.

(3) A group of multiple fire‑arm wounds in area 17 c.m. x 12 c.m. on front and outer side of right leg, 13 c.m. from right knee joint, each 1/2 c.m. x 1/2 c.m. inverted margins (entry wounds), each directed backwards, medically and to. the left and slightly upwards. There was no blackening and scorching present and there were corresponding holes on Shalwar and right leg was swollen.

(4) Multiple fire‑arm wounds in area 14 c.m. x 9 c.m. on medial side of left leg, each c.m. x c.m. inverted margins (entry wounds) and were directed backwards and to the left. There was no blackening and scorching present and there were corresponding holes in Shalwar.

5. In the opinion of the doctor, Injuries Nos.2 and 3 caused with fire‑arm, were individually and collectively fatal in the ordinary course of nature.

6. The ocular account has been furnished by Mst. Hadayat Bibi (P.W.5) and Mazhar Hussain (P.W.6) mother and real brother of the deceased respectively. In addition, the prosecution also relied upon the evidence of motive and absconsion of the petitioner after the occurrence.

7. Learned counsel for the petitioner has contended firstly that the ocular account was furnished by the highly interested witnesses and it was in conflict to the medical evidence. Secondly Mst. Kausar Bibi, wife of the deceased, who was most natural witness of the occurrence was not examined and thirdly, the marriage of Mst. Kauser Parveen was arranged by the petitioner himself, therefore, he had no motive to commit murder of his son‑in‑law. Learned counsel argued that in fact Mulazim Hussain, real brother of the petitioner committed the murder as he was unhappy on the marriage of Mst. Kauser Bibi with Fazal Hussain as has been stated by the petitioner in his statement under section 342, Cr.P.C.

8. The eye‑witnesses being inmates of the house narrated the occurrence in detail in each material point without any describable contradiction. The deceased was fired at by the accused twice when he was sitting in the company of witnesses in the courtyard of their house. The accused before opening fire at the deceased, raised Lalkara that he would teach a lesson to the deceased for solemnizing marriage with Mst. Kauser Bibi, his daughter, without his permission. The witnesses having stood to the test of lengthy cross‑examination, remained consistent and made no exaggeration in their statements and Mst. Kausar Parven, real daughter of the petitioner, was married with Fazal Hussain. son of Mst. Hadayat Bibi and brother of Mazhar Hussain, therefore, they had no reason with them for the false implication of petitioner through substitution. The version of the occurrence given by the petitioner would not appeal to mind as the real mother and brother of deceased would not falsely involve the petitioner in the murder of his son‑in‑law to save the skin of Mulazim Hussain, his brother. The non‑production of Mst. Kauser Parven who was present with the deceased and witnesses in the house at the time of occurrence, was understandable as she would not be prepared to come in the witness‑box and depose against her real father, therefore, no adverse inference can be drawn for the exclusion of her name from the calendar of witnesses. The deceased sustained fire‑arm injuries almost of the similar size on right arm, thigh, right knee joint and left leg with corresponding holes and all these injuries were found without blackening and scratching, and thus the contention of learned counsel regarding the conflict of medical evidence with ocular account was not more than a mere imagination and presumption as the witnesses are not expected to give the photographic picture of the fire‑arm injuries with exact location. The injury on right leg would definitely be the result of separate fire but the contention that it was a case of more than one culprit and occurrence did not take place in the manner as set up by the prosecution, was without any substance.

9. The motive given by the prosecution that petitioner was revengeful against the deceased for the marriage of his daughter with deceased without his consent, was proved by the direct evidence of the mother and brother of the deceased. The disappearance of the accused from his ordinary place of residence immediately after the occurrence for a continuous period of more than four months, without any reasonable explanation would be a supporting circumstance in proof of his guilt.

10. We having gone through the evidence With the help of learned counsel for the petitioner, find that prosecution has successfully established the charge against the petitioner through direct evidence of the natural witnesses which was also seeking corroboration from the medical evidence, the motive and absconsion of the petitioner, therefore, the finding of guilt of the petitioner arrived at by the learned trial Judge and maintained by the High Court would not call for interference of this Court.

11. For the foregoing reasons we, while upholding the conviction and sentence awarded to the petitioner, dismiss this petition. Leave is refused.

12. N.H.Q./M‑653/S Leave refused.