RANA FAZALADEER Versus THE STATE

SHEIKH ABDUR RAZZAQ, J. ‑‑‑ Succinctly stated, the facts as enumerated by the complainant Bashir Ahmed (P.W.8) in F.I.R. Exh.P.H, are that on 21‑2‑1993 bye‑election was held in which he and his cousin Amanullah son of Muhammad Shafi and Muhammad Ramzan supported Pakistan Peoples Party whereas Sardar Ali son of Muhammad Suleman, Maqsood and Mehmood sons of Muhammad Ashraf supported Muslim League. After casting their votes, he came to his house whereas his cousin Amanullah made for Chak No.254/GB to participate in some marriage ceremony. He (complainant) again went to the polling station at about 5‑30 p.m. to know about the result and in the meanwhile. Amanullah also reached there. As a result of election Peoples Party was declared as winning party. Thereupon, he (complainant) alongwith Amanullah and other persons celebrated the said victory and after passing through Bazar reached in front of his house at about 6‑30 p.m., when he alongwith Amanullah, Javed Iqbal son of Fazal Muhammad went to his house. While they were sitting there and electric bulb was on, Maqsood Ahmed armed with 222 rifle, Mehmood Ahmed empty‑handed and Sardar Ali son of Muhammad Suleman armed with 222 rifle entered his house. Maqsood Ahmed and Mehmood Ahmed climbed the stairs of his house whereas Sardar Ali son of Muhammad Suleman raised Lalkara that he will teach a lesson to Amanullah for supporting Peoples Party. He then fired with his rifle, which hit pillar of the stairs. He (Sardar Ali) fired a second shot which hit Amanullah on his left flank. He (Sardar Ali) fired a third shot which hit Amanullah on the front of his chest. As a result of said injuries Amanullah fell and died on the spot. The occurrence, it is alleged, was witnessed by Javed Iqbal, Mst. Shahida Parveen and Mst. Abida Tasneem who also identified the accused in the light. Leaving the dead body of Amanullah in the courtyard of his house under the supervision of Javed Iqbal, the complainant left for Police Station to lodge report.

2. Azhar Hussain Shah S.‑I. (P.W.11) was posted at Police Station D‑type Colony, Faisalabad on 2‑12‑1993 who on the statement of Bashir Ahmed (P.W.8) recorded F.I.R. Exh.P.H. He then made for the place of occurrence and found that dead body of Amanullah was lying over there. He prepared his statement of injuries Exh.P.E, inquest report Exh.P.F handed over the dead body to Nazir Ahmed Constable (P.W.4) for post?mortem examination, secured blood‑stained earth vide memo. Exh.P.J, secured 3 empties Exh.P‑9/1‑3 vide memo. Exh.P.K. and prepared rough site plan Exh.P.1. On 3‑12‑1993 Nazir Ahmed, Constable (P.W.4) produced last‑worn clothes P.1 to.P.3 of the deceased, which he secured vide memo. Exh.P.B. On the same day he got the site inspected through Syed Kazim Hussain draftsman (P.W.1) who on 5‑12‑1993 delivered site plans Exh.P.A. and Exh.P.A./1. On 10‑12‑1993 he arrested all the three accused named above. On 24‑12‑1993 the accused Sardar Ali led to the recovery of 222 rifle P.5 and licence P.6, which he secured vide memo. Exh.P.C. On the same day Masood Ashraf accused led to the recovery of 222 rifle P.7 and licence P.8. He secured it vide memo. Exh.P.D. The said memos. were witnessed by Javed Iqbal and Abdul Khaliq. He handed over the parcels to the Moharris for keeping the same in Malkhana and also recorded his statement. After completing the investigation he sent up the accused for trial.

3. A charge under sections 302/449/34, P.P.C. was framed against the accused, to which they pleaded not guilty and claimed trial.

4. In order to bring home guilt to the accused prosecution examined Syed Kazim Hussain P.W.1 who on 3‑12‑1993 visited the site and prepared site plans Exh.P.A. and Exh.P.A./1 and handed over the same to the Investigating Officer on 5‑12‑1993. Ghulam Asghar MHC P.W.2 was given two parcels containing blood‑stained earth and empties on 3‑12‑1993 for keeping the same in Malkhana. On 3‑1‑1994 he delivered the said parcels to Muhammad Yousaf constable (P.W.3) for onward transmission to the office of Chemical Examiner. On 24‑12‑1993 he was given a parcel containing rifle which he delivered to Muhammad Yousaf constable (P.W.3) on 18‑1‑1994 for onward transmission to the office of Forensic Science Laboratory. Muhammad Yousaf constable P.W.3 corroborated the statement of P.W.2 referred above. Nazir Ahmed constable P.W.4 was handed over dead body of Amanullah on 2‑12‑1993 for post‑mortem examination which was conducted on 3‑12‑1993. Thereafter, he (P.W.4) was handed over last‑worn clothes of the deceased P.1 to P.3, which were secured by the Investigating Officer, vide memo. Exh.P.B. Shahid Rasool P.W.5 identified dead body of Amanullah on 3‑12‑1993 at the time of post‑mortem examination. Muhammad Iftikhar P.W.6 is a witness of, recovery memo. Exh.P.C. pertaining to rifle P.5. and licence P.6 of accused Sardar Ali, and of memo. Exh. P. D regarding recovery of 222 rifle P.7 and licence P.8 of Masood Ashraf accused Dr. Nawazish Goraya, P. W .7 conducted post-mortem examination of Amanullah deceased on 3‑12‑1993 and found the following injuries on his person.

(1) A fire‑arm wound of entry 1 c.m. x 1/2 c.m. x DNP on the outer side of right chest 13 c.m. away from right nipple. Edges of the wound were inverted.

(2) A fire‑arm wound of entrance 1 c.m. x .l/2 c.m. x DNP on the front of left chest 7‑1/2 c.m. medial to left nipple. Edges of the wound were inverted.

(3) A fire‑arm wound of exit 1.4 c.m. x 0.9 c.m. x DNP on the back of left chest 5 c.m. below the lower border of scapula and 3 c.m. towards left of mid line. The edges were everted.

5. In his opinion the cause of death was shock due to internal and external haemorrhage under Injuries Nos.1,2 and 3 which were sufficient to cause death in ordinary course of nature, individually as well as collectively. All the injuries were grievous in nature and were ante?mortem and had been caused, by fire‑arm. The probable time between injuries and death was immediate whereas between death and post?mortem examination was 12/16 hours approximately. He produced post?mortem examination report Exh.P.G and sketch of injuries Exh.P.G/1. Bashir Ahmed P.W.8 is the complainant of this case, who corroborated his version appearing in F.I.R Exh.P.H. Javed Iqbal P.W.9 is an eye?witness of this case and supported the prosecution version appearing in F.I.R. Exh.P.H. He is also marginal witness of memo. Exh.P.J. pertaining to the securing of blood‑stained earth as well as memo, Exh.P.K. regarding securing of 3 empties Exh.P.9/1‑3. Mst. Shahida Parveen P.W.10 is another eye‑witness of this occurrence who also corroborated the prosecution version. Azhar Hussain Shah S.‑I. P.W.11 is the Investigating Officer whose evidence has already been discussed above. Thereafter, the learned A.D.A. produced report of Chemical Examiner Exh.P.M, report of Serologist Exh.P.N. reports of Forensic Science Exh.P.O. and Exh.P.Q. and closed the prosecution case vide statement, dated 27‑3‑1996.

6. When examined under section 342, Cr.P.C. the accused Masood Ashraf and Mehmood Ashraf denied the prosecution version. The accused Masood Ashraf claimed his 222 rifle being a licensed one. The accused Sardar Ali also claimed 222 rifle and stated that the same was secured from his house on 24‑12‑1993. In reply to Question No. 13 as to why this case had been registered against him he stated as follows:‑‑

"The case is false, all the P.W. as are inter se related and interested inter se with the deceased and they have made false statements against me due to enmity and party faction in the village. There was no dispute between me and Amanullah deceased. The motive alleged by the prosecution is false.

7. After the statements of the accused had been recorded Mst. Abida Tasneem was examined as C.W.1 on 26‑10‑1596. Thereafter, the statements of accused were again recorded on 13‑11‑1996. None of the accused either examined himself under section 340(2), Cr.P.C. or adduced any evidence in defence.

8. After going through the evidence referred above, the trial Court while acquitting Masood Ashraf and Mehmood Ashraf sons of Muhammad Ashraf convicted Sardar Ali under section 302(b), P.P.C. and sentenced him to death. He was further sentenced to pay fine of Rs.50,000 or in default thereof to undergo R.I. for 2 years. He was also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased Amanullalh or in default thereof to undergo S.I. for 6 months. He was further convicted under section 449, P.P.C. and sentenced to R.I. for 10 years and fine of Rs.10,000 or in default thereof to undergo R.I. for 2 years. The appellant has felt aggrieved of the said judgment and filed the instant appeal, Alongwith this case Murder Reference No.28 of 1997 has also been made by the trial Court as required under section 374, Cr.P.C.

9. As the instant criminal appeal and Murder Reference No.28 of 1997 arise out of the same judgment, so these are being disposed of by this single judgment.

10. We have heard the learned counsel for the appellant and learned counsel for` the complainant assisted by the learned counsel for the State and have also perused the record.

11. It is submitted by the learned counsel for the appellant that evidence pertaining to motive as well as recovery of 222 rifle on the part of accused/appellant has not been believed by the trial Court, so the appellant could not be imposed normal penalty of death and could at the most be sentenced to imprisonment for life. He further submits that as the motive in the instant case remains shrouded in mystery so even on this score normal penalty of death could not be imposed upon the accused/appellant. He thus, submits that the sentence awarded to the appellant may be modified to one imprisonment for life. He, however, argued that sentence of fine imposed upon the appellant is not warranted by law.

12. Conversely, the impugned judgment has been supported by the learned counsel for complainant assisted by the learned counsel for the State. However, it is admitted by the learned counsel for the complainant as well as the State that punishment of fine could not be imposed upon the accused/appellant.

13. We have given our anxious consideration to the submissions made by the learned counsel for the parties. We have noticed that trial Court has not believed the motive simply on the ground that there is no evidence on record to show if the accused‑appellant had any affiliation with either of the political parties. This contention of the ‑trial Court is not fortified by record. A perusal of cross‑examination of Bashir Ahmed complainant P.W.8 reveals that accused/appellant was also a polling agent of a candidate of Muslim League. This admission on the part of P.W.8 clearly proves that accused/appellant had also political affiliation with Muslim League whereas the complainant party had a soft corner for Peoples Party. Thus, this fact proves that motive as asserted by the prosecution stands established from the very cross‑examination, to which Bashir Ahmed (P.W.8) was subjected by the learned counsel for the accused/appellant. Again the trial Court has not believed the evidence of recovery of 222 rifle P.5 secured vide memo. Exh.P.C. on 24‑12‑1993 simply on the ground that witnesses of recovery named by the Investigating Officer have not attested the memo. Exh.P.C. There is no doubt that said witnesses have not attested the said memo. yet P.W.6 has supported the factum of recovery which further stands corroborated by the report Exh.P.D. of Forensic Science Laboratory, Lahore. Accordingly we do not indorse the reasonings given by the trial Court for rejecting said evidence. Even otherwise a perusal of record reveals that empties were ~ secured on 2‑12‑1993. Its parcel was handed over to the M.H.C. on 3‑12‑1993. The parcel containing 222 rifle Exh.P.5 secured vide memo. Exh.P.C. at the instance of accused/ appellant was prepared on 24‑12‑1993. The parcel containing empties was sent on 3‑1‑1994 and that of 222 rifle Exh.P.5 was sent on 18‑1‑1994. As per report of Forensic Science Laboratory' Exh.P.D.3 empties Exh.P.9/1‑3 have been fired from 222 rifle recovered on 24‑12‑1993 at the instance of accused/appellant Sardar Ali. Thus, evidence of recovery further i corroborates the medical evidence which has come on record through statement of Dr. Nawazish Goraya (P.W.7).

14. It may be mentioned here that the stand of accused/appellant has been that the injury on the person of deceased was not caused by him but it had been caused by a 222 rifle of his co‑accused Masood Ashraf. To prove this fact a mutilated bullet Mark‑B alongwith 222 rifle pertaining to Masood Ashraf accused were sent to Forensic Science Laboratory. Lahore. As per report of Forensic Laboratory Exh.P.Q. no opinion has been expressed, as the bullet lacked identifiable data. Thus, report Exh.P.Q. also does not come to the rescue of the accused/appellant. The prosecution has examined Bashir Ahmed (P.W.8), Javed Iqbal (P.W.9) and Mst. Shahida Parveen (P.W.10) and all of them have stood the test of cross‑examination and categorically deposed that it was the accused/appellant who is responsible for causing the murder of deceased Amanullah. Mst. Abida Tasnim was examined as C.W.1 as a result of order passed in writ petition filed by the, accused/appellant for that purpose. Even the statement of C.W 1 has proved beyond any doubt that it was the accused/appellant who committed the murder of deceased t Amanullah.

15. For what has been stated above we do not find any force in the instant appeal. However, we hold that punishment of fine imposed by the trial Court is not warranted by law. Accordingly while modifying the sentence of fine imposed upon the appellant we dismiss the instant appeal.

16. Murder Reference is answered in affirmative.

N.H.Q./S‑319/1 ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.