SAHIB KHAN Versus State

MUHAMMAD AKHTAR SHABBIR, J .--- This criminal appeal, by leave of the Court, is directed against the judgment, dated 2-10-2001 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby the sentence of life imprisonment awarded .to Sahib Khan by the learned Sessions Judge, Jhelum, vide judgment dated 2-8-1999, for committing the "Qatl-i-Amd" of Muhammad Asghar deceased, was maintained. Hence, the appellant preferred Jail Petition No.74 of 2002 before this Court out of which Criminal Appeal No.216 of 2003 has arisen.

2. Briefly stated the facts of the case as narrated by complainant Muhammad Iqbal (P.W.9) in the F.I.R. (Exh.P.C./1) are to the effect that on 16-12-1996, he along with Muhammad Azhar (deceased) were going towards their village Lilla from their Dera. When they reached on Pir Khara-Lilla Road at 8-30 a.m., Azhar Hussain armed with .222 bore rifle, Shahbaz (absconder) with kalashnikov, Sahib Khan (accused-appellant) with rifle and Bagh Jillani with .7 mm rifle suddenly emerged from the ambush on eastern side. Azhar Hussain raised Lalkara that he had come to avenge the murder of his father and that he would not spare Muhammad Asghar. Upon that Shahbaz (absconder) fired a burst which hit on the right temple of Muhammad Asghar. The fire shot by Azhar accused hit on the right shoulder of deceased. Sahib Khan accused fired which hit on the lower part of right shoulder of the deceased. Bagh Jilani also fired which hit on left thigh near knee of the deceased. The accused then decamped from the spot towards Pir Khara. The deceased Muhammad Asghar succumbed to the injuries at the spot.

3. The motive behind the occurrence, as alleged in the F.I.R., is that a few years ago, Muhammad Bashir father of Azhar accused was murdered and Muhammad Asghar deceased was nominated in that case. In order to take revenge of the murder of Muhammad Bashir, the accused party killed Muhammad Asghar.

4. The prosecution to establish its case against the appellant produced as many as 12 witnesses including the doctor and the Investigating Officer. The ocular account of the occurrence was furnished by complainant Muhammad Iqbal (P.W.9) and Sabir Din (P.W.8). The medical evidence was furnished by Dr. Ikhlaq Hussain Shah (P.W.1) who conducted the post-mortem examination of the deceased. Muhammad Aslam, S.-I. (P.W.12) was the Investigating Officer. The appellant when examined under section 342, Cr.P.C. denied the prosecution story, pleaded not guilty and deposed as under:--

"I am innocent. On the day of occurrence, I was present in Haroon Salt Mines as a miner-worker. In the said Mine, I was on employee two years before the occurrence. On the day of occurrence I resumed my duty at 8-00 a.m. and left my work at 4-00 p.m. I worked on the day of occurrence along with Naser Mehmood resident of Lilla Bharwana, Sanawar Khan resident of Lilla Hindwana and Gul Sher son of Muhammad Sher resident of Dhoke Burj etc. in the mines. I surrendered myself before the local police and at the time of my arrest, this very was my first version before the Investigating Officer, who also verified this fact after recording statements of above persons. In fact, I was the complainant in murder case of Muhammad Bashir deceased who was my brother-in-law and I had nominated Muhammad Iqbal complainant of this case along with other persons. Due to this grudge Iqbal complainant has nominated me in this case falsely."

5. The learned trial Court having found the case against the appellant Sahib Khan and his other co-accused proved beyond reasonable doubt convicted him under section 302(b), P.P.C. and sentenced him to imprisonment for life with direction to pay Rs.30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.

6. The learned counsel for the appellant contended that the prosecution witnesses are closely related to the deceased and the interested witnesses, their testimony is not worth credence. He further argued that the appellant has been involved maliciously in the case and there are material discrepancies in their statements which are fatal to the prosecution case; that from the evidence it is established that only kalashnikov was used in the occurrence and no other weapon has been used and the allegation of firing with .222 bore rifle and .8 mm rifle is a cock and bull story; that the accused-appellant was not present at the place of occurrence and he has been involved in the case due to friendship with co-accused Azhar and that Sahib Khan accused-appellant was working in Haroon Salt Mines on the fateful day and did not participate in the occurrence.

7. While on the other hand, the learned Deputy Prosecutor-General vehemently opposed the arguments of the learned counsel for the appellant and supported the impugned judgment of the High Court.

8. We have heard the learned counsel for the accused-appellant as well as the learned Deputy Prosecutor-General and perused the record with their assistance.

9. The occurrence has taken place on the road at 8-30 a.m. and the F.I.R. was recorded on the same day at 9-45 a.m. promptly without wasting any time in the negotiations and conversation which is proof of the fact that the witnesses of the occurrence were natural. Even otherwise, the mere relationship of the prosecution witnesses with the deceased is no ground to discredit their evidence if it is proved that it is straightforward, fair and confidence-inspiring 'as laid down in the cases of Umerzad v. The State 1990 SCMR 571; Bashir Khan v. The State 1995 SCMR 900 and Nazir Ahmad v. Muhammad Siddique 1995 SCMR 1740. The prosecution witnesses have passed the test of lengthy cross-examination but the defence has not been able to extract any material discrepancies or contradictions from their mouth which could be fatal to the prosecution case.

10. Though in the society, substitution is a phenomenon and people do implicate some innocent persons but this cannot be presumed that leaving the actual culprits scot-free, some innocent persons would be involved in a heinous crime. The defence has not produced any evidence on the file of the case to show that if the occurrence has not been committed by the appellant, then who had killed the deceased Muhammad Asghar.

11. As to the plea of "alibi", non-presence of the appellant in the occurrence, no convincing evidence to establish this defence version is available on the record except the bald statement of Sanawar Khan (D.W.3), nor any other documentary evidence has been produced to establish the working of the appellant in the Mining Company. Besides, no responsible officer of the company appeared to support the defence version. So much so, the appellant himself did not appear in his own defence under section 340(2), Cr.P.C. Therefore, the plea of non-participation or non-presence of the appellant in the occurrence is not proved.

12. The prosecution has furnished motive of the occurrence as stated by Muhammad Iqbal (P.W.9) complainant and Sabir Din (P.W.8) to the effect that Bashir (father of Azhar co-accused) was murdered about 7/8 years ago and a suspicion was cast upon Asghar deceased who was acquitted of the charge and due to that grudge, the occurrence has taken place. The accused were closely related to each other. While on the other hand, the defence plea is that Bashir father of Azhar (co-accused of the appellant) was murdered and the complainant and deceased were accused in that case and they have falsely implicated the accused in the present case. It is settled proposition of law that the motive is a double-edged weapon which can cut the throat of both sides. From the minute scrutiny of the evidence, it can be inferred that Azhar co-accused along with his companions appellant and others had committed the occurrence to satisfy his grudge as the accused of his father's case was acquitted. Azhar co-accused is the real son of Bashir deceased and present appellant Sahib Khan his brother-in-law of said Bashir deceased. Therefore, the prosecution by producing the evidence has been successful in proving the motive of the occurrence.

13. Moreover, seven entry and nine exist (total 16) wounds were found on the dead body of the deceased which are supported by the statement of Dr. Ikhlaq Hussain Shah (P.W.1) and the postmortem report of the deceased (Exhs.P.A. and P.A./2).

14. The prosecution has been successful to bring home the guilt of the accused-appellant to the hilt by furnishing ocular testimony, medical evidence, recovery of weapon of offence, crime-empties, blood-stained earth, reports of Chemical Examiner and Serologist. The High Court, after appraising the prosecution evidence, has affirmed the conviction and sentence of the appellant. The learned counsel for the appellant has failed to point out any error of law in the impugned judgment which is unexceptionable.

15. For the foregoing reasons, this appeal being devoid of any merit is dismissed.

S.A.K./S-16/SC Appeal dismissed.