MUHAMMAD AFZAL Versus STATE
KH. MUHAMMAD SHARIF, J. --- This judgment will dispose of Jail Appeal No.15-J of 1993 filed by Muhammad Afzal appellant and Criminal Appeal No.14/J of 1993 filed by Dost Muhammad and Ghulam Yaseen. They were convicted and sentenced on 26-1-1993 by Special Judge for Suppression of Terrorist Activities Court No.2, Sargodha for the murder of Ghulam Akbar. They were sentenced as follows:--
"Muhammad Afzal was awarded death sentence with a fine of Rs.50,000 in default 2 years' R.I.
As far as Dost Muhammad and Ghulam Yasin were concerned, they were convicted under section 302/34, P.P.C. to undergo life imprisonment with a fine of Rs.50,000. Benefit of section 382-B, Cr.P.C. was also granted. It was also ordered that if fine recovered from the convict/accused a sum of Rs.50,000 was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C, It may also be noted here that two co-accused of the appellants namely Matloob Ahmad and Nadeem Qasim were acquitted by the learned trial Court through the same judgment.
2. The occurrence in this case took place on 8-7-1992 at 1-30 a.m. in Chah Astranwala Dakhli, Police Station Kaloorkot in the house of the complainant. While the matter was reported to the police by Muhammad Rustam on the same day at 2-30 a.m. vide F.I.R. Exh.P.A. and the Police Station Kaloor Kot was at a distance of 3 k.m. from the place of occurrence.
3. On the basis of report Exh.P.A., lodged by Muhammad Rustam P.W., on 8-7-1992, at Police Station Kaloor Kot, District Bhakkar, registered a case under section 148 read with section 302/149, P.P.C. against the aforementioned accused persons vide F.I.R. No.113, dated 8-7-1992. It was alleged in the F.I.R. that on 8-7-1992, at about 1-30 a.m. (night between 7th and 8th July, 1992), Muhammad Afzal accused armed with a Kalashnikov, Matloob Ahmad and Dost Muhammad accused armed with pistols, Ghulam Yaseen accused armed with a rifle and Nadeem Qasim accused entered in the Haveli of house of the complainant and tried to abduct Mst. Kalsoom, a sister of the complainant. When Muhammad Rustam and Muhammad Hashim P.Ws. tried to rescue Mst. Kalsoom, Muhammad Afzal accused shouted that they would be shot dead, if they came near. Thereafter, Ghulam Akbar deceased; father of Mst. Kalsoom P.W. tried to rescue Mst. Kalsoom from the accused, when Muhammad Afzal accused fired a brust of kalashnikov at him, resulting an injury on the left eye of Ghulam Akbar deceased. Thereafter, the accused persons decamped from the place of occurrence dragging Mst. Kalsoom out of the Haveli and thereafter, managing to escape in a white coloured ~uzuki car, which was parked outside the Haveli of the deceased. As a result of the injuries, Ghulam Akbar, deceased died at the spot.
4. The motive for the murder of Ghulam Akbar deceased, as alleged in the F.I.R., was that two years prior to the present occurrence Muhammad Afzal accused and some others had abducted Mst. Kalsoom P.W. and a case under the Islamic Law was registered against them. Muhammad Afzal accused had approached the deceased for compromise but the later refused to do so, giving a cause of annoyance to Muhammad Afzal accused.
5. The Investigating officer reaching the spot took into possession blood stained earth vide memo. Exh.P.B. He also took into possession 5 empty cartridges P.5/1-5 vide memo. Exh.P.C., a lantern P.20 was also taken into possession vide memo. Exh. P. D., Muhammad Afzal appellant was arrested on 21-7-1992 while Dost Muhammad appellant was arrested on 25-11-1992 and Ghulam Yaseen appellant was arrested on 7-8-1992. Muhammad Afzal also led, to the recovery of Kalashnikov P.4 alongwith 20 live cartridges i.e. P.4/1-20 vide memo. Exh.P.F. Dost Muhammad appellant also got recovered a pistol P.7 vide memo. Exh.P.H. There is a Report of Chemical Examiner Exh.P.O. and that of Serologist Exh.P.P. and Fire-arm Expert Exh.P.Q. All these are positive in nature.
6. Prosecution in order to prove its case produced 10 witnesses in all. Amongst them there were three eye-witnesses i.e. Rustam P.W.1, son of the deceased Ghulam Akbar, Mst. Kalsoom Bibi P.W.2, daughter of deceased and Muhammad Hashim P.W.3, the maternal-nephew of the deceased.
7. Learned counsel for the appellants has read before us the prosecution evidence, statements of the appellants and submits that the occurrence had taken place in dark hours of night, that both the eye-witnesses produced by the prosecution are interested witnesses. He further, submits that motive if any was with Muhammad Afzal appellant. He submits that no overt act is attributed to Dost Muhammad and Ghulam Yaseen appellants. He also submits that the two co-accused namely Matloob and Nadeem Qasim were acquitted by the learned trial Court and their case is on the same footing as that of acquitted co-accused. He also submits that Ghulam Yaseen appellant was also declared innocent in the earlier abduction case of Mst. Kalsoom Bibi while Muhammad Afzal was found guilty. He also submits that neither Dost Muhammad nor Ghulam Yaseen fired at the place of occurrence. He also submits that as far as Hashim P.W. is concerned, he is chance witness and resident at a distance of 4/5 k.m. from the place of occurrence.
8. On the other hand learned counsel for the State submits that both the eye-witnesses produced by the prosecution are natural witnesses, that there was no previous background of enmity between the parties, that all the appellants were named in the F.I.R. and also before the trial Court. He submits that the offence committed by the appellants is of heinous nature.
9. We have gone through the evidence recorded by the learned trial Court with the assistance of both the learned counsel for the parties. We may observe here that it was Muhammad Afzal appellant who was armed with kalashnikov and fired at Ghulam Akbar deceased when he tried to save Mst. Kalsoom Bibi P.W., who was being kidnapped by Muhammad Afzal alongwith his co-accused. The empty cartridges recovered from the spot matched with the kalashnikov got recovered by Muhammad Afzal appellant. It was Muhammad Afzal appellant who had the motive to come to the spot and again abducted Mst. Kalsoom Bibi and during that occurrence he killed Ghulam Akbar, father of Mst. Kalsoom Bibi. Both the eye-witnesses namely Rustam and Mst. Kalsoom Bibi are natural witnesses because the occurrence had taken place in their house. Even Muhammad Afzal was also an accused in an earlier occurrence in which he had abducted Mst. Kalsoom Bibi P.W. In the instant case ocular account is corroborated by motive, medical evidence and recovery of kalashnikov from Muhammad Afzal appellant. In our view prosecution has proved its case against Muhammad Afzal appellant beyond any shadow of doubt and he deserves no leniency. There is also no mitigating circumstance in favour of Muhammad Afzal appellant. In this view of the matter, the conviction and sentence awarded to Muhammad Afzal appellant is maintained in toto. Murder reference is replied in affirmative and his death sentence is confirmed.
10. Now we take up the question of sentence of Dost Muhammad and Ghulam Yaseen. Although, it was alleged that they were armed with pistols but they did not fire at the spot. Dost Muhammad had no motive to join hands with Muhammad Afzal appellant. As far as Ghulam Yaseen is concerned he was also found innocent in the earlier case of abduction of Mst. Kasloom Bibi. Nothing incriminating was. recovered from Ghulam Yaseen appellant during the course of investigation. The pistol recovered from Dost Muhammad appellant is of no consequence to the prosecution case. Neither he fired at the spot nor any crime empty of pistol was recovered from the spot. The case of Dost Muhammad and Ghulam Yaseen is at par with that of Matloob and Nadeem Qasim who were acquitted by the learned trial Court. Following the law of consistency we also extend the benefit of doubt to both Dost Muhammad and Ghulam Yaseen appellants. Conviction and sentence awarded to them by the learned trial Court is hereby set aside. They are behind the bars, they shall be released forthwith if not required in any other case.
11. Before parting with this judgment we may observe here that the learned Special Judge had not framed any charge under section 10/11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 because it was the prosecution case that Mst. Kalsoom Bibi was abducted by the appellant Muhammad Afzal from her house and thereafter, Muhammad Afzal appellant committed Zina with her and the same fact was stated by Mst. Kalsoom Bibi before the learned trial Court. We, at this stage, do not like to remand the case on this ground because the occurrence in this case took place in 1992 and the appellant was convicted in 1993. Six years have passed, no useful purpose can be served at this stage for remanding the case to the learned trial Court because the death sentence of Muhammad Afzal has already been confirmed by this Court. With these observations these appeals stand disposed of.
Q.M.H./M.A.K./M-1021/L Order accordingly.