MUHAMMAD AFZAL Versus THE STATE

M. BILAL KHAN, J. ‑‑‑ This Criminal Appeal No.181 of 1999 is directed against the judgment, dated 30‑8‑1999 passed by the learned Additional Sessions Judge, Jhelum whereby he convicted Muhammad Afzal son of Fazal Ahmad, caste Khokhar resident of Ratowal, Police Station Jala1pur Sharif, District Jhelum under section 302, P.P.C. for committing Qatl‑i‑Amd of Mst. Safdar Begum wife of the complainant Nazar Muhammad and his son Zaigham Abbas and was sentenced to death on two counts: One of the daughters of the complainant, namely, Saiqa had also received a gunshot injury in the transaction and the injury so received by her was declared as Ghayr Jaifah Damihah falling within the ambit of section 337‑F(i), P.P.C., therefore, the accused was also convicted under section 337‑F(i), P.,P.C. and sentenced to one year's R.I. and was also ordered to pay Daman. The accused was given the benefit of section 382‑B, Cr.P.C. For confirmation, of the death sentences, Murder Reference No.381 of 1999 was sent to this Court. Both these mailers i.e. Criminal Appeal No. 181 of 1999 ‑and Murder Reference No.381 of 1999 are being disposed of through this judgment.

2. Briefly stated the facts of the prosecution case as unfolded in the F.I.R. are that the complainant Nazar Muhammad was employed in the Army and was posted at Multan. He had come to his home on one month's leave and on the day of occurrence i.e. 12‑10‑1997 about 3‑30 p.m. he was going to village Gaura with his family consisting of his wife Safdar Begum, four daughters namely Samina, Salina, Saiqa and Iram and three sons namely Aamer, Qamar and Zaigham to deliver some clothes as gift on the birth of a baby boy of his wife's brother Akram. When they reached the plot of Zahoor Ahmad near Government Primary School, Ratowal the accused Muhammad Afzal, a real brother of the complainant, appeared there with a .12 bore double barrelled gun and asked the complainant not to go to the house of his in‑laws. On refusal of the complainant the accused fired a shot at the complainant but the target missed and the second shot of the accused hit on the left side of the forehead of Safdar Begum wife of the complainant. The third shot hit Zaigham Abbas son of the complainant on the forehead and a pellet of the same fire injured Saiqa Sultana hitting her on the right upper arm. Both Mst. Safdar Begum and Zaigham Abbas succumbed to their injures at the spot. Besides the complainant the occurrence was witnessed by Fazal Ahmad and Qamar Shahzad father and son respectively of the complainant. The accused fled towards northern side after the incident.

3. The motive behind this occurrence as stated in the F.I.R. was that Ghulam Rasool paternal‑uncle of the complainant had agreed to marry his daughter with Azhar Mahmood another brother‑in‑law (wife's brother) of the complainant but the accused also wanted the same girl to be married with him and on the failure of the complainant and his wife to oblige the accused he got annoyed and to avenge this insult he murdered the wife of the complainant and his son while injuring Saiqa Sultana his daughter.

4. The complainant reported the matter to the police as a consequence of which F.I.R. No.77 was registered at Police Station Jalalpur Sharif on 12‑10‑1997 under section 302/324, P.P.C. Ashiq Hussain, S.‑I. reached the place of occurrence and sent the dead body of Mst. Safdar Begum through Azmat' Ullah constable to Tehsil Headquarter Hospital Pind Dadan Khan for post‑mortem examination. On the same day i.e. 12‑10‑1997 he also sent the dead body of Zaigham Abbas through Muhammad Akram constable to the same hospital for post‑mortem examination. The Investigating Officer Ashiq Hussain, S.‑I. also handed over Saiqa Sultana to Muhammad Anwar Constable to be taken to Rural Health Center Jalalpur Sharif for medical examination. On 13‑10‑1997 Dr. Saeeda Kausar W.M.O. T.H.Q. Hospital P.D. Khan conducted post‑mortem examination on the dead body of Mst. Safdar Begum at 10‑00 a.m. and found the following injuries on her person:‑‑

"A hole of about 3 c.m. in diameter present on right side of scalp at the temporal bone. Skin surrounding the wound was lacerated and blackened. This is the entry wound of the fire‑arm. Scalp was torn at multiple places in the zig zag way. Right temporal wound frontal bone and right parietal bone and left pariotal bone all fractured. Scalp was torn from external occipital proturberance to nasion. Brain matter was lying outside the skull. Multiple small pellets could be palpated in the brain matter on the inner wall of skull and scalp. Few pellets were collected in a bottle as sample. No single exit wound could be demarcated on the skull. It appears as fire‑arm had made its way out by fracturing the skull bone. Hairs were matted with blood.

In the opinion of doctor death occurred due to extensive damage to the brain by fire‑arm. Fire‑arm injury was ante‑mortem. This injury was sufficient to cause death in the ordinary course of nature. Probable time between injury and death was immediate and time between death and post‑mortem was about 36 hours.

On the same day Dr. Khalid Mehmood Farooq M.O. R.H.C. Jalalpur Sharif medically examined Saiqa Sultana. His observations were as under:‑‑

"There was an abrasion on outer aspect of right shoulder joint. Size of abrasion was 2 c.m. x 1 c.m. Abrasion was cherry red in colour.

In the opinion of doctor injury was caused by friction. It was declared as Ghayr Jaifah Damihah.

On 13‑10‑1997 Dr. Muhammad Zafar Iqbal conducted post mortem examination of Zaigham Abbas and found the following injuries:‑

(1) A wound of entry on the back of head at the level of injury No.1. It had inverted margin and was 1 c.m. x 1 c.m. in diameter. It was a hole in the skull.

(2) A wound of exit on the front of head 1 c.m. above the upper margin of forehead. It was 4 c.m. and anterior posteriorly and 1 c.m. in width. It was also in the hole in the cranial cavity.

Injury No. 1 was continuous with injury No.2. Bony pieces were present in the brain matter under the wound No. l with clotted blood in the cranial cavity.

Brain matter had damaged in the passage from injury No. 1 to injury No.2. No bony particles were found under the wound No.2 in the carnial cavity.

In the opinion doctor death occurred due to neurogenic shock due to head injury by fire‑arm which had damaged the brain and it was sufficient to cause death in the ordinary course of nature. Time between injury and death was immediate and between death and post‑mortem within 36 hours.

5. After completing the investigation the accused was challaned. Charge was framed under two heads i.e. section 302, P.P.C. and section 324, P.P.C. to which the accused pleaded not guilty and claimed trial.

6. In order to prove its case the prosecution examined as many as 15 witnesses including Muhammad Akram P.W.I Lady Doctor Saeeda Kausar P.W.2. Dr. Khalid Mehmood Farooqi P.W.3, Muhammad Mumtaz P.W.4, Muhammad Arsal P.W.5, Muhammad Akram constable P.W.6, Dr. Muhammad Zafar Iqbal P.W.7, Muhammad Anwar P.W.8. Muhammad Akram constable P.W.9, Azmatullah constable P.W.10. Saiqa Sultana P.W.11, Mst. Salma Parveen P.W.I2, Nazar Muhammad P.W.13, Muhammad Azam H.C. P.W.14 and Safdar Hussain A.S.‑I. P.W.15. The Investigating Officer Ashiq Hussain, S.‑I. died before his evidence in the Court could be recorded and in his place Safdar Hussain, A.S.‑I. appeared as P.W.15 who identified the writings and signatures of the deceased Investigating Officer and made statement regarding the red notes of the S.‑I. on the site plans. The Draftsman Muhammad Siddique had also died before his evidence in the Court. The reports of Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence as Exh.P.R., Exh.P.S., Exh.P.T., Exh.P.U. and Exh.P.V.

7. Muhammad Akram P.W. 1 was the recovery witness of blood stained earth from the spot as also the recovery of empty cartridges from the place of occurrence. Muhammad Mumtaz P.W.4 stated that he took the dead body of Safdar Begum to T.H.Q. Hospital Pind Dadan Khan and also identified the dead body of Zaigam Abbas at the time of post mortem examination. P.W.5 Muhammad Arsal I.H.C. deposed that on 18‑10‑19 Moharrar gave him two sealed parcels of two bottles and one sealed parcel of an envelope and he delivered the same to the office of Chemical Examiner for his report. P.W.6 Muhammad Akram constable stated about transmission of the dead body of Zaigham Abbas to the mortuary. P.W.B 7 deposed about the medical examination of Mst. Saiqa Sultana P.W.9 Muhammad Akram constable No.449 deposed about the transmission of two sealed parcels of blood‑stained earth and one sealed parcel of empties to the office of Chemical Examiner and Forensic Science Laboratory, Lahore. P.W.10 Azmatullah constable deposed that he escorted the dead body of Safdar Begum to the mortuary. He also deposed that after post‑mortem examination the Lady Doctor handed over to him three sealed phials, two sealed envelopes and the last‑worn clothes of the deceased lady for onward transmission of the same to the Investigating Officer. P.W.11 Saiqa Sultana who had sustained a fire arm injury during the occurrence. P. W .12 Salma Parveen and P. W .13 Nazar Muhammad complainant who are closely related to the accused furnished the eye‑witness account of the occurrence. They reiterated the stance taken in the F.I.R. and gave the minutest details of the occurrence. Nazar Muhammad complainant (P.W.13) also deposed about the motive. In additional he deposed about the recovery of the weapon of offence i.e. the gun recovered at the pointation of the accused on 19‑10‑1997. The medical evidence in the case was provided by Dr. Saeeda Kausar (P.W.2), Dr. Khalid Mahmood Farooqi (P.W.3) and Dr. Muhammad Zafar Iqbal (P.W.7). P.W.14 Muhammad Azam H.C. deposed about the recording of formal F.I.R. He further deposed that on 12‑10‑1997 the Investigating Officer gave him three sealed parcels two of them containing blood‑stained earth and one containing three empty cartridges for delivery of the same to the concerned offices. P.W.15 Safdar Hussain, A.S.‑I. stated about the death of former Investigating Officer Ashiq Hussain, S.‑I. after which he took over the charge of investigation. He also deposed about the arrest of Muhammad Afzal accused on 17‑10‑1997 who too was an Army employee through the intervention of the military authorities. He identified the handwriting and signatures of Ashiq Hussain. S.‑I. on various documents pertaining to the investigation of this case. After the close of prosecution evidence on 20‑7‑1999 the accused was examined under section 342, Cr.P.C.

8. The accused in his statement under section 342, Cr.P.C. pleaded not guilty and professed his innocence. To a question as to why the P.Ws. deposed against him, he replied as under:‑‑

"All the P.Ws. are closely related to the complainant and are interested witnesses. Specially the minor girls who had appeared as P. Ws. are the real daughters of the complainant. They had falsely deposed against me under the pressure of their father complainant to save his skin. P.Ws. Fazal Ahmad and Shehzad are real father and real son of the complainant. They had not appeared against me and they were given up by the prosecution.

In fact both the above said P. Ws. were not willing to give false statement against me according to the wishes of Nazar Muhammad complainant. Saiqa Sultana P.W. did not receive any fire‑arm injury according to the medico‑legal report. This fact indicates that her statement" before this Court and eye witnesses had‑ deposed against the facts. In fact both the deceased were hit by the unintentional fire of the complainant Nazar Muhammad. Nazar Muhammad is serving in the Army as Subedar‑Major and he was at the peak of his service at the time of occurrence. If he was involved in this case he would be deprived of all benefits from, his service that is why the elders of the family had made me a scapegoat in this case just to save the career of complainant."

He did not opt to make statement under section 340(2), Cr.P.C. and Also did not produce any defence evidence.

The trial culminated in conviction and sentence of the accused/appellant as mentioned above. Hence this appeal and the connected murder reference.

9. We have heard the learned counsel for the parties at length. It has been argued by the learned counsel for the appellant that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. She argued that the prosecution witnesses were closely related inter se and as such their testimony could not be believed; that two eye‑witnesses mentioned in the F.I.R. namely Qamar Shahzad son of the complainant and Fazal Ahtnad father of the complainant had not been produced by the prosecution and this fact would adversely affect its case, that the defence plea put forward by the appellant i.e. both the deceased persons were hit by an unintentional fire of the complainant Nazar Muhammad himself and since Nazar Muhammad was serving as Subedar Major in the Army and his involvement in toe case would have deprived him of his service benefits, therefore, the elders of the family made him a scapegoat to save the career of the complainant was very probable which ought to have been accepted by the learned trial Court, that out of two recovery witnesses of .12 bore double‑barrelled gun i.e.. the weapon of offence one witness Qamar Shahzad had not been produced which would render the said recovery doubtful.

10. Conversely Mr. Tanvir Iqbal the learned Assistant Advocate General has argued that the prosecution had been able to prove its case to the hilt and that the learned trial Court bad rightly convicted and sentenced the appellant to death on two counts of murder.

11. After hearing the learned counsel for the parties and going through the record with their assistance we have straightway noticed that the eye‑witnesses were the natural witnesses of the occurrence who had not only furnished a convincing and confidence‑inspiring account of the incident in detail but had also resolutely withstood the test of cross‑examination. The F.I.R. was lodged promptly without any delay and the complainant was none other than the real brother of the appellant/ accused. The gun with which the appellant had killed Safdar Begum aged 36 years and Zaigham Abbas aged 5 years, the wife and son respectively of the complainant, was recovered from the custody of the accused and the crime‑empties collected from the spot matches with the said gun. As already stated the complainant who was real brother of the accused had no enmity whatsoever against the latter and as such the question of appellant's false implication was not possible. There was no plausible reason to disbelieve the ocular account which had been furnished by the complainant Nazar Muhammad (P.W.13) his injured daughter namely, Saiqa Sultana (P.W.11) and another daughter Salma Parveen (P.W.12). The, said ocular account was corroborated by, the medical evidence, the evidence pertaining to the recovery of weapons of offence, matching of crime‑empties with the gun recovered from the accused and the motive furnished by the complainant. The learned counsel for the appellant has not been able to point out any misreading or non‑reading of evidence or any conflict between the ocular account and the medical evidence. The eye‑witnesses no doubt were closely related to the deceased but at the same time they were also related to the accused/appellant and in the absence of any motive on their part to falsely implicate the appellant in this case, none of them could by any stretch of the argument be termed as ail interested witness. Mere relationship of the eye‑witnesses with the deceased would not make their testimony incredible when their presence at the spot at the time of occurrence was natural and not open to any doubt. Even otherwise it was a case of single accused, the occurrence c having taken place at daytime and the witnesses were fully acquainted with the accused. The prompt registration of the F.I.R. had eliminated the chance of pre‑meditation and consultation and it also reflects the truthfulness of the prosecution story. The defence version of the accused that in fact both the deceased in this case had died because of an accidental fire caused by the complainant himself and that the elders of the family chose to make the appellant a scapegoat in order to save the service career of the complainant who was a Subedar Major in the Army appears to be absolutely preposterous and has not inspired our confidence in the given situation. The said plea taken by the appellant is neither borne out from the circumstances nor the same is spell out from the evidence available on the record. On the contrary the said plea strengthens the case of the prosecution. The objection of the learned counsel for the appellant that all the eye‑witnesses mentioned in the F.I.R. and that of the recovery memos. had not been produced and that the said omission would weaken the prosecution story is absolutely without any substance inasmuch as the law does not prescribe any particular number of witnesses to be produced by the prosecution. It is always the quality of evidence and not the quantity which determines the fate of a criminal trial. The learned counsel has not been able to point out that the eye‑witnesses had any ill‑will or rancour towards the appellant. We have noticed that the learned trial Court after correctly analyzing and examining the prosecution evidence had rightly found the prosecution case to have been proved beyond reasonable doubt. The story pleaded by the defence on the face of it appears to be a cooked up plea. There is no mitigating circumstance available in the entire case which could earn lenient treatment for the appellant.

12. We have also noticed that the learned trial Court has failed to award the compensation under section 544‑A, Cr.P.C. which is a mandatory requirement of law. We, therefore, direct the appellant to pay compensation of Rs.50,000 each to the legal heirs of both the deceased persons or in default of payment to undergo six months' S.I.

13. Resultantly, there being no merit in this appeal, the same is dismissed. The convictions and sentences passed by the learned trial Court vide its judgment dated 30‑8‑1999 are maintained. The sentence of death awarded to Muhammad Afzal son of Fazal Ahmad caste Khokhar is hereby confirmed.

Murder Reference No.381 of 1994 is answered in the affirmative.

N.H.Q./M‑235/L. Appeal dismissed.