ABDUL MAJEED Versus State

ORDER

MUHAMMAD FARRUKH MAHMUD, J .--- Abdul Majeed appellant was tried for causing the murder of Fazal Karim in case F.I.R. No.160, dated 21-6-1995 Police Station Mandra Tehsil Gujar Khan, District Rawalpindi for offence under section 302, P.P.C. Vide judgment, dated 24-9-1998, the learned trial Court convicted the appellant for offence under section 302(b), P.P.C. and sentenced to death. He was also directed to pay Rs.1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof he was to suffer S.I. for six months. The conviction and sentence was upheld by the learned Division Bench of Lahore High Court (Rawalpindi Bench) vide judgment, dated 21-4-2004. Feeling aggrieved the appellant filed petition for leave to appeal against his conviction and sentence. Leave was granted by this Court on 26-9-2005 to reappraise the evidence in its true perspective considering the fact that neither blood-stained earth nor empties were recovered from the place of incident, hence, the above captioned appeal.

2. The relevant facts are that on the fateful day, the complainant was getting a well dug outside the village, Fazal Karim deceased, Wadi Hussain Munir Ahmed P.Ws. were with him. At about 4-15 p.m. the work was stopped, Wadi Hussain and Munir Ahmed started towards the village while Fazal Karim started towards his well. While he was at few paces from his well, Abdul Majeed appellant who was already present on the way surprised him. After raising Lalkara, Abdul Majeed started firing at Fazal Karim who fell after the receipt of fires. Complainant along with P.Ws. rushed to'the spot. Meanwhile Abdul Majeed made good his escape. The P.Ws. observed injuries on the chest under right shoulder, right thigh, left thigh and three fingers of the left hand. The wounds were bleeding. Fazal Karim while injured was put on a cot, he was brought on the mettled road and from there he was shifted in a Suzuki in order to take him to hospital, however, Fazal Karim lost his life at Sakkar Mor and his dead body was taken to the police station in the Suzuki where the matter was reported to Ishtiaq Ahmed, Inspector (P. W.8).

3. According to F.I.R., there were two motives behind the occurrence. The first was that three days prior to the occurrence, cattle belonging to Abdul Majeed appellant were found grazing in the field of Fazal Karim which led to quarrel between the two, abuses were exchanged and both grappled with each other. They were separated by Gulzar Hussain and Abdul Rasheed P.Ws. The second motive was that Mst. Safia Sultana and Fazal Hussain sister and brother of Abdul Majeed had filed civil cases against the complainant, Fazal Karim used to help the complainant which caused grievance to Abdul Majeed.

4. During trial prosecution examined eight witnesses in support of its case. Haji Nazir Ahmed first cousin and brother-in-law of the deceased along with Munir Ahmed who was distantly related to the deceased appeared as eye-witnesses Nos.5 and 7. Both of them supported the story given in the F.I.R. including the motive. Gulzar Hussain P.W.3 who was brother-in-law of the deceased stated about the altercation which had taken place on 18-6-1995 i.e. three days prior to the occurrence. Dr. Muhammad Ajmal Khan (P.W.1) stated that he conducted post-mortem examination at 8-40 a.m. on 22-6-1995 on the dead body of Fazal Karim deceased. He observed 10 injuries on the person of the deceased. Injury No.1 was on the chest. Injury No.2 was on the front of right thigh. Injury No.4 was on the left thigh and was from a very close range as blackening was present. Injuries Nos.5, 7 and 9 were on the index finger, middle finger and ring finger of the left. The rest of the injuries were exit wounds. According to his opinion, injury No.1 proved fatal and the deceased lost his life within half an hour of the receipt of injuries. He further opined that time elapsed between death and post-mortem was within 24 hours. The doctor also recovered bullet from the dead body sealed it in a bottle and handed it over to Muhammad Hussain constable (P.W.6). During cross-examination, he admitted it to be correct that injury No.1 resulted into internal bleeding and that injuries Nos.2 to 10 must have bled profusedly. In reply to a question, he explained that the application submitted by the Investigating Officer was dated 21-6-1995 and was received by him on 22-6-1995. It has been noted that injury statement Exh.P.B. and inquest report Exh.P.C. both are dated 21-6-1995 i.e. when the occurrence took place. Ishtiaq Ahmed, S.H.O. appeared as P.W.8 his statement was recorded on oath on 6-6-1998 but he could not be cross-examined due to non-availability of learned defence counsel and the same was reserved. Before he could be cross-examined, he was murdered while in line of his duty on the night in between 19/20-6-1998 as is evidence from Mark "A/1" present at page 112 of the paper book and Mark "B" F.I.R. No.71 registered at Police Station Dhadiyal District Chakwal on 19-6-1998 at 11-00 p.m. available at page 113 of the paper book. Rest of the witnesses are formal.

5. After closure of the prosecution case, statement of appellant was recorded on 22-8-1998 under section 342, Cr.P.C. He claimed to be innocent and stated that P.Ws. were related inter se and were inimical towards him as his sister had been litigating against the P.Ws. He further stated that the deceased was murdered by some unknown persons at some unknown place and time. In other words it was an un-witnessed occurrence.

6. The learned counsel for the appellant has argued that both the eye-witnesses were closely related to the deceased and were chance witnesses; that there was no physical evidence of the presence of P.Ws. as their clothes were not stained with blood and for that they were not taken into possession by police; that the presence of the P.Ws. is also doubtful from the fact that no empty or blood-stained earth was recovered from the spot. Furthermore he submitted that no blood was collected from the cot which was. used in carrying the deceased while injured; that no signs of trampling were seen at the place of occurrence; that the ocular account was in conflict with the medical evidence; that the ocular account which consisted of interested witnesses was not corroborated by any reliable evidence as the recovery of revolver from appellant was disbelieved by the learned trial Court; that the prosecution case was not free from doubt.

7. Conversely, learned counsel appearing on behalf of the complainant has argued that both the eye-witnesses have given trustworthy account; that P.W. Munir had no direct enmity with the appellant; that the P.Ws. were natural and their statements were fully supported by the medical evidence; that revolver was used in the occurrence, there was six entry wounds on the dead body of the deceased that meant that whole chamber was emptied by firing and that since the appellant was equipped with revolver, the empties remained in it and there was no question of falling of empties on the spot. He further argued that P.Ws. had explained that they immediately rushed to the spot and carried the deceased and then put him on a cot. Furthermore according to P.Ws. the deceased fell on the ground while his face was upwards so no blood fell on the ground as the deceased was immediately attended to by the P.Ws. the learned counsel further submitted that the ocular testimony was fully corroborated by the medical evidence, motive and circumstances of the case and that the learned trial Court wrongly discarded the evidence of recovery of revolver. He summed up his arguments by submitting that no mitigating circumstance existed in favour of the appellant.

8. The learned Deputy Prosecutor-General supported the impugned judgment.

9. We have heard the learned counsel for the parties at great length and have scanned the entire record of the case. It is in evidence that the deceased and P.Ws. were together on the occasion of digging of well and departed at 4-15 p.m. after the closure of the work. The factum of digging of well of the complainant has not been seriously challenged. It is customary that close relatives help each other on such occasions so the presence of P.Ws. was quite natural. The complainant did not specify the shots fired upon by the appellant in the F.I.R. nor it was mentioned therein that the deceased received fires at such and such part of the body. It was stated in the F.I.R. that the appellant started firing at the deceased, the P. Ws. rushed to the spot and reaching there observed the wounds on the person of the deceased on different parts of the body. The narration by the complainant is very natural and truthful. He could very easily improve his statement by specifying the number of shots and seat of injuries but he did not do so. We are afraid that the statements of eye-witnesses cannot be discarded for the mere reason that blood-stained earth was not collected by the Investigating Officer. The explanation for not falling of blood on the ground has been brought on the record by the learned counsel of the appellant himself during cross-examination. We may refer to the relevant portion of the cross-examination available at page 55 of the paper book:---

"The deceased was bleeding but the blood had not as yet fallen on the ground that we picked up. Deceased Fazal Karim had fallen on the ground. Deceased had fallen while facing towards sky. We reached near the deceased within a minute after he received the injury."

10. The complainant in reply to the question stated that his clothes were stained with blood while shifting the deceased. If his clothes were not taken in possession by the Investigating Officer, then it reflected on his working and lethargy. It could not cause any harm to the prosecution case. As far as the occurrence is concerned both the P.Ws. Nazir Ahmed and Munir Ahmed have given consistent, coherent, natural and convincing account of the occurrence. They have corroborated each Other on almost all the material particulars of the case. It may be mentioned here that P.W.5 was subjected to a very length cross-examination consisting of eight pages but the intrinsic value of his evidence could not be shaken. The tenor of cross-examination suggests that the appellant had been taken different defences. It was suggested to complainant that firstly Iftikhar son of deceased was married with Rukhsana daughter of Ali Shan P.W.2. A child was born. Thereafter the marriage broke up and Rukhsana obtained divorce and after divorce married with one Riaz. It was further suggested that Rukhsana was suspected to have relationship with said Riaz and that Rukhsana had been stating that Iftikhar and his father (Fazal Karim deceased) would be taken to task at appropriate time for levelling allegations against her. It was specifically suggested to the complainant that Riaz and Ali Shan jointly murdered Fazal Karim at some unknown place and time. Of course, the suggestion was denied. A wild allegation was also levelled against the character of the deceased that he was addicted to liquor, was a dare devil and used to outrage the modesty of women of the area. All these wild allegations were levelled without any proof in the shape of oral or documentary evidence. Not a single F.I.R. was brought on record against the deceased. Realising that substitution was a rare phenomenon, the appellant did not say a word about the character of the deceased in his statement recorded under section 342, Cr.P.C. or that deceased was done to death by Riaz and Ali Shan jointly. It may be mentioned here that Ali Shan appeared as a prosecution witness and it speaks volumes against the theory that Ali Shan was one of the murderers. The P.Ws. were related to the deceased, the deceased was, also survived by a son, no reason existed whatsoever to substitute the killer with an innocent person. The presence of the complainant and- other P.Ws. is also established from the factum of lodging of F.I.R. without any loss of time. The occurrence took place at 4-15 p.m. while the matter was reported to the police at police station at 6-15 p.m. within two hours of the occurrence while the police station was at a distance of 22 Kms. It is mentioned in the F.I.R. that the complainant after the death of Fazal Karim went to the police station along with the dead body straightaway. This part of the story is also corroborated by the unchallenged statement on oath of P.W.8 Ishtiaq Ahmed; S.H.O. The learned counsel has referred to certain confrontations available on the record of the case and argued that witnesses improved their statements. On the contrary, the contention of learned counsel is devoid of any force as the confrontations are in fact only details of the occurrence which naturally crop up during examination and cross-examination of a witness.

11. The medical evidence has fully supported the ocular account, as the deceased did receive multiple fire-arm injuries on his person.

12. As far as motive is concerned the factum of altercation between the deceased and the appellant three days prior to the occurrence has been brought on record through eye-witnesses as well as Gulzar Hussain P.W.3. The mere fact that the matter was not reported to the police would not matter much as the villagers do not rush to the police station to report every incident especially when the incident did not result into any serious injury. As far as second part of the motive is concerned, that is almost admitted. The argument of learned counsel that in that case the appellant would have murdered complainant instead of deceased is devoid of any force as it is the mind of the killer which matters and the Court cannot indulge into hypothetical theories.

13. Now coming to the recovery. We are of the view that in the absence of recovery of any empty, the recovery of revolver could not be used against the appellant. Even otherwise the learned trial Court has discarded this piece of evidence for valid reasons.

14. The upshot of the whole discussion is that it was a case of single accused, the occurrence took place when the light was available and the identity of the assailant was not in question. P.Ws. plausibly established their presence at the time of occurrence. Their statements were fully supported by the medical evidence and corroborated by the circumstances of the case including lodging of F.I.R. promptly. Both the learned Courts rightly believed the prosecution evidence. In the circumstances, in our opinion the prosecution has successfully proved its case against the appellant. The appellant waylaid the deceased and repeatedly fired at him which showed his intention and weakness in the motive, if any, would not come to his rescue. Reference may be made to the judgment of this Court in the case of Syed Hamid Mukhtar Shah v. Muhammad. Azam and 2 others 2005 SCMR 427, wherein it was observed that inefficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non-awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment". This appeal is accordingly dismissed.

M.H./A-20/SC Appeal dismissed.