MUHAMMAD AZAM Versus THE STATE

1. Muhammad Azam, appellant has challenged judgment dated 6-1-2001 passed by the learned Additional Sessions Judge, Lahore whereby he was convicted under section 302(b), P.P.C. for committing murder of Muhammad Rafiq and sentenced to imprisonment for life and a fine of Rs.30.000, in default whereof to undergo for three months' R.I. He was also directed to pay compensation of Rs.100,000 under section 544-A, Cr.P.C. and if the same realized half of the same was ordered to the legal heirs of the deceased and in default whereof to further undergo six months' R.I. Benefit of section 382-B, Cr.P.C. was, however, extended in his favour.

2. The brief facts of the prosecution case are that F.I.R. No.89 of 1999 Exh.P.A./1 was recorded on 4-3-1999 at Police Station Hanjarwal at 9-15 a.m. about the occurrence took place on the same day at 8-15 a.m. on the statement Exh.P.A. of Sardar Ali, P.W.1 by Baqir Hussain, Inspector/S.H.O. P.W.9, wherein it was stated that he was resident of Alpa Kalan, Tehsil Pattoki, District Kasur was cultivator by profession and had come to see his brother Muhammad Rafiq (deceased) in New National Rana Town who was working as Naib-Qasid in the National Bank and on the day of occurrence in order to go back to his village at 8-15 a.m. he alongwith his brother Muhammad Rafiq who had to attend his duty/job left the house of the deceased and they had gone some distance where they met Muhammad Iqbal brother-in-law of the deceased resident of Bhaikaywal who had come to see him and he was having a chat with him when Muhammad Rafiq continued walking and reached near "Gosha-e-Ahbab" and the complainant saw Muhammad Azam arriving there driving a rikshaw from Rana Town side and passed by the complainant and Muhammad Iqbal, and by reaching near Muhammad Rafiq he caused mauser shot hitting at Muhammad Rafiq, who fell down. The complainant and Muhammad Iqbal raised hue and cry which attracted Muhammad Ilyas at the spot and before they reached near Muhammad Rafiq, the appellant made indiscriminate firing hitting at different parts of Muhammad Rafiq. Thereafter the accused fled away from the spot. Muhammad Rafiq succumbed to the injuries at the spot.

3. The alleged motive for the occurrence was that Muhammad Azam was tenant of upper portion of house of Muhammad Rafiq, deceased and had not paid rent for 8/9 months despite repeated demands. Instead of payment of rent the appellant extended threats and 2/3 days before he had come to take his luggage froth the house but was not allowed without payment of the rent by the deceased and due to this grudge the appellant committed this offence.

4. Baqir Hussain, Inspector P.W.9 after recording statement Exh.P.A. of Sardar Ali, P.W.1 at Mansoora srnt the same to the police station for registration of F.I.R. (Exh.P.A./1) and he himself arrived at the spot and prepared the inquest report of the dead body of Muhammad Rafiq through memo. Exh.P.H. and dispatched the dead body for post mortem examination. He also collected blood-stained earth from the spot through memo. Exh.P.D. and took into possession two empties through memo. Exh.P.B. He recorded the statements of the eye-witnesses and prepared the rough site-plan through memo. Exh,P.J. on the pointation of the eye-witnesses. Thereafter, he took into possession last-worn clothes of the deceased through memo. Exh.P.C. On 23-3-1999 Iqbal Hussain, S.-I. P.W.7 undertook the investigation. He arrested the appellant/accused on 4-4-1999 who while in police custody on 8-4-1999 led to the recovery of rikshaw which was taken into possession through memo. Exh.P.E. and on 9-4-1999 led to the recovery of mauser P.5 which was taken into possession through Exh.P.F. After completion of the investigation he submitted the challan.

5. The trial Court framed the charge which was denied by the appellant and he claimed trial. During the trial the prosecution examined as many as 9 witnesses to prove the guilt of the accused.

6. The medical evidence was furnished by Dr. Shehbaz Ahmad Chaudhary, P.W.8 who on 5-3-1999 conducted the post-mortem examination on the dead body of Muhammad Rafiq and found the following injuries:--

7. (1-A) A lacerated wound 1.5 x 1 c.m. present on the left side of the chest about 12 c.m. left to the midline and 5.5 c.m, above left nipple at 12'O clock position.

8. (1-B) A lacerated wound with everted margins present on back of chest, 6 c.m. left to the midline and 23 c.m. below the base of neck. On exploration of chest under above-stated injury it was found that a missal entered the chest and goes into it piercing the skin, soft tissue, perforating left lung and exited from the back. The left side of the chest cavity was full of clotted blood. The left lung was collapsed and haemorrhage. There was fracture of left 9 th rib posteriorly.

9. (2-A) A lacerated wound about 1 x 1 c.m. present on upper chest, 1.5 c.m. at 7'O clock position. The margins were inverted.

10. (2-B) A lacerated wound 1.5 x 1 c.m. was present on right lumber region in front about 17 c.m. from the umbilicus on right side and 4 c.m. above right iliac crest. The margins were everted and flesh is protruding from the wound. On exploration of chest and abdomen it was found that a missal entered from injury No.2-A and cut the skin and soft tissue deep, damaging the stomach through and through and injured the small intestines and left through injury 2-B. The abdominal cavity was full of contents of stomach and little blood.

11. (3-A) A lacerated wound 1 x 1 c.m. present on front of right thigh, 25 c.m. above right knee-joints and 22 c.m. below right iliac crest. The margins of the wound were inverted.

12. (3-B) Lacerated wound 1.5 x 1 c.m. present on upper medial aspect of right thigh about 29 c.m. above right knee-joints. On dissection it was found the missal going through and through the soft tissue.

(4) A 3 x 1.5 c.m. grazed wound present on right side of scrotum.

(5) A 3 x 1 c.m. grazed wound present on upper medial aspect of left thigh, 13 c.m. from the left knee joint.

13. The ocular account was furnished by Sardar Ali, P.WA who was complainant of the case and he supported the version of the F.I.R. and narrated the motive. Muhammad Iqbal, P.W.2 was also eye-witness of the occurrence. He supported the prosecution story as narrated by Sardar Ali, P.W.1. He also deposed about the motive for the occurrence. Both of them also attested the recovery memos. Exh.P.B. and Exh.P.C. Muhammad Iqbal also attested the recovery memo. Exh.P.D. Muhammad Aslam, P. W .3 was the witness of recovery of rikshaw which was taken into possession through memo. Exh.P.E. on 8-4-1999 and mauzer P.5 alongwith 2 live bullets P;6/1-2 got recovered by the appellant on 9-4-1999 which were taken into possession through memo. Exh.P.F. Khalil Ahmad, F.C. P.W.4 escorted the dead body of Muhammad Rafiq for post-mortem examination and produced the last-worn clothes of the, deceased before the Investigating Officer and attested the recovery memo. Exh.P.C. Muhammad Tufail, A.S.-I. P.W.5 recorded the formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. Muhammad Hussain, F.C. P.W.6 kept the sealed parcels containing empties P.W.6/1-2 and blood-stained earth in safe custody in Police Malkhana.

14. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.L. and that of Forensic Science Laboratory Exh.P.M. as well as Serologist Exh.P.N.

15. The statement of the accused/appellant was recorded under section 342, Cr.P.C. who denied the allegations and claimed innocence and false involvement. In reply to question as to why the case against him and the P.Ws. deposed against him he stated as under:--

16. "In fact, I have been making regular payment of rent to the deceased and there was no dispute regarding the payment of rent between me and the deceased. Ilyas P.W. (not produced) was on visiting terms with the deceased and used to come to his house in his absence also. I and deceased objected to his visit. Owing to this reason the wife of the deceased quite often quarrelled with me and the deceased on this issue. The wife of the deceased had nursed annoyance with me and my wife and often quarrelled with us for the visit made by Ilyas P.W. and for which reason she demanded the vacation of the house. So I vacated the house of the deceased five months prior to the occurrence for this reason. Deceased was done to death by some unknown assailant and I have been framed as accused in this case by the wife of the deceased and Ilyas P.W. falsely on the basis of earlier dispute and grudge. P.Ws. were neither present at the time of occurrence nor had seen the same. The complainant was called from Pattoki by the wife of the deceased and Ilyas P.W. and after with their consultation he got the case registered against me. P.Ws. had deposed against me due to the abovesaid reason, otherwise I have no nexus with the alleged offence. On this, I was arrested and falsely implicated in this case."

17. The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. The complainant has also filed Criminal Revision No.226 of 2001 for enhancement of the sentence. Both the matters are being decided by this single judgment.

18. In support of the appeal, learned counsel for the appellant has argued that the motive alleged by the complainant has not been proved as it was stated that some luggage of the appellant was lying in the house of the deceased but no such articles were taken into possession. Regarding recovery of weapon of offence, it has been argued that report of the Forensic Science Laboratory is in the negative, therefore, recovery of mausar is immaterial and the rikshaw allegedly taken into possession was not produced before the trial Court; that there is clear contradiction in the medical evidence and the ocular account. Both the eye-witnesses Sardar Ali, P.W.1 and Muhammad Iqbal, P.W.2 categorically stated that first fire made by the appellant hit at the back of the deceased but no such injury is available which shows that they were not present at the spot and had not seen the occurrence. It has also been argued that both the witnesses are interested and chance witnesses. They are not residents of the locality and Sardar Ali P.W.1 has been brought from Pattoki to make the complainant of the case. Both of them are closely related to the deceased and their testimony has not been corroborated from any other 'independent source. It has also been pointed out that in the F.I.R. Sardar Ali, P.W.1 had not mentioned the date of his arrival from the village but made dishonest improvement when he was examined before the trial Court by stating that he had come to see his brother on 1-3-1999. Lastly, it has been argued that the investigation of the case was dishonest as Baqir Hussain, P.W.9 firstly stated that he arrived at the spot on receiving a wireless message then he improved his statement by stating that he recorded the statement Exh.P.A. at Mansoora, but Muhammad Iqbal, P.W.2 had stated that statement of the complainant was recorded at the spot. It has been also maintained that according to the Investigating Officer many persons were present at the spot but he has not examined any other person except the alleged eye-witnesses, therefore, case of the prosecution is doubtful and the appellant is entitled for acquittal by extending benefit of doubt.

19. Conversely, the appeal has been opposed by learned counsel for the complainant and for the State. Learned counsel for the complainant also stressed for enhancement of the sentence.

20. Heard. Record perused.

21. The alleged occurrence took place at 8-15 a.m. and the statement Exh.P.A. was recorded at Mansoora, Multan Road, Lahore at 8-55 a.m. on same day i.e. 4-3-1999. Thereafter the F.I.R. was registered at the police station at 9-15 a.m. which shows that the F.I.R. was prompt wherein the appellant was nominated as an accused. Baqir Hussain, P.W.9 after arriving at the place of occurrence took into possession two empties through memo. Exh.P.B. and this recovery memo. was attested by Sardar Ali, P.W.1 and Muhammad Iqbal, P.W.2. Likewise, blood-stained earth was taken into possession through memo. Exh.P.D. was attested by Muhammad Iqbal, P.W.2 which shows that both the witnesses A P. W .1 and P. W .2 were present at the place of occurrence alongwith the Investigating Officer. According to Dr. Shehbaz Ahmad Chaudhary, P.W.8 the dead body was received in the department at 10-40 a.m. which also confirms the prosecution story that there was no delay in recording of F.1.R. or initiation of investigation. The complaint Exh.P.A. has also been signed by Sardar Ali, P.W.1 on which formal F.I.R. Exh.P.A./1 was recorded. Both the witnesses have sufficiently explained their presence at the spot. Muhammad Iqbal, P.W.2 who is gardner in the University had come to see the complainant and deceased. So they cannot be termed as chance witnesses. As per settled law one cannot be termed as a chance witness if he reasonably explains his presence at the spot and his narration regarding occurrence inspires confidence. Even a chance I witness can be natural witness if the occurrence took place at a public place. Furthermore mere relationship of P. W .1 and P. W .2 with the deceased is no ground to discard their testimony. Reliance in this regard can be placed on 1973 SCMR 69, 1968 SCMR 1392, 1972 SCMR 460 and 1978 SCMR 136. Both the witnesses can be interested but they are not inimical towards the appellant for his false implication or substitution by letting off the real culprit. They are consistent in their statement and the contradiction pointed out by the learned counsel for the appellant that both of them stated that first fire made by the appellant hit at the back of the deceased but there is no injury on the back, is immaterial, because both of them stated that they were at some distance from the deceased when he was fired at by the appellant and microscopic details of the occurrence or location of the injuries is neither expected nor it is possible. Both of them stated that the appellant made indiscriminate firing hitting at the deceased and this fact has been corroborated by the medical evidence as well as by inquest report. Another argument advanced by learned counsel for the appellant that both of them stated that the deceased was hit at the metalled road but his dead body was found in a nearby vacant plot. I find that "it is not material contradiction. As according to both the witnesses, Muhammad Azam, appellant passed by them by driving a rikshaw and fired at the deceased from his mauser when he was walking along the road so the target was a human being and not a statue, so after hearing the fire shot possibility cannot be ruled out that he might have tried to save himself or on receiving the injuries tried to hide of nearby. The empties and the blood-stained earth with teaspoonful was taken into possession from the place where the alleged occurrence took place which establishes the place of occurrence as alleged by the prosecution and has not been contradicted from the defence side. This is a case of single accused. After reappraisal of the evidence I find that both the witnesses Sardar Ali, P.W.1 and Muhammad Iqbal, P.W.2 are truthful and confidence-inspiring witnesses and there is no reason to discard their testimony. It was a daylight occurrence and the identity of the appellant is neither disputed nor there was any reason for substitution. As far as motive is concerned it is now settled law that weakness or absence of motive is not fatal to the prosecution case. Both the eye-witnesses have stated this fact that the appellant had dispute with the deceased over payment of rent, therefore, luggage if any lying in the house of the deceased was not necessary to be taken into possession. There is general trend in the society that neutral persons do not come forward to depose against the accused due to fear of their. lives, therefore, if some independent persons from the locality gathered at the spot were not examined by the Investigating Officer, is no ground to disbelieve the eye-witnesses. Furthermore, there was no complaint made to the higher police officials on behalf of the appellant against the Investigating Officers, so the argument of learned counsel for the appellant that it was a dishonest investigation is without any basis.

22. It is correct that report of the Forensic Science Laboratory is in negative as the empties taken into possession from the spot do not tally with the pistol/mauser got recovered by the appellant. It shows that the pistol got recovered by the appellant was not the same weapon of offence used by him for commission of murder of Muhammad Rafiq and he got recovered some other weapon knowingly/dishonestly, to destroy the case of the prosecution.

23. I find that the prosecution case has been established against the appellant beyond shadow of doubt and find no force for interference in the conviction recorded against the appellant and the sentence awarded by the trial Court as the trial Court has already taking lenient view awarded lesser penalty The conviction and sentence is maintained. However, the sentence of fine is set aside and benefit of section 382-B, Cr.P.C. shall be available to the appellant. The appeal is dismissed having no force.

24. Criminal Revision No.226 of 2001 is also dismissed as having no force.

25. H.B.T./M-1902/L Appeal dismissed.