1. Sabir son of Faza appellant was convicted for an offence under section 302 (b), PPC as Taz’ir, vide judgment dated 31.01.2012 rendered by the learned Additional Sessions Judge, Rahim Yar Khan and was sentenced to death for committing ‘qatl-i-amd’ of Ashiq Hussain deceased with direction to pay a sum of Rs. 2,00,000/- to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. and in default of payment thereof to further undergo six months. He was also convicted under section 148 PPC and sentenced to undergo two years R.I. and benefit of section 382-B, Cr.P.C. was also extended to him. Sabir appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No. 56 of 2012 which has been heard by us alongwith Murder Reference No. 15 of 2012 sent by the learned trial court under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death passed by the learned trial court against Sabir appellant. We propose to decide both these matters together through the present consolidated judgment.
2. Concisely the facts of the prosecution case setup in the F.I.R (Ex. PA) got lodged by Waheed Murad complainant (PW-1) are that he was resident of Mouza Puran and was working in a showroom with the name of “Nawaz Motors” at Khan Pur Road, Rahim Yar Khan. He was residing temporarily at Gulshan-e-Iqbal, Rahim Yar Khan. On every Friday being holiday, he used to go to Mauza Puran to see his parents. On the day of occurrence, he (complainant) alongwith Liaqat Ali, Shakir (P.W-10) and Jamil came to Mauza Puran to see his parents, where Ashiq Hussain (deceased) alongwith his wife Mst. Gul Naz, who were living at Karachi having close relationship with the parents of the complainant had also come to see them. As soon as they intended to leave for Rahim Yar Khan, Ashiq Hussain (deceased) and his wife also became ready to go with them. The complainant, Liaqat Ali and Shakir (PW-10) maternal nephew of the complainant boarded on a Daala bearing Registration No. DR/6080, which was being driven by the complainant, whereas, Ashiq Hussain (deceased), Mst. Gul Naz and Jamil Ahmad (PW-9) boarded on a car bearing Registration No. PG/9071 and the said car was being driven by Jamil Ahmad (PW-9) paternal cousin of the complainant.
At about 8.00 p.m. when they boarded on the above-said vehicles reached near the dera of Zahid Khan within the limits of Chak No. NP/63, suddenly, from the road side, Muhammad Nawaz (since P.O), Sabir (appellant) and Fayyaz Ahmad (since P.O) all armed with rifles, Haq Nawaz armed with pistol, Nazir Ahmad armed with soti, Fida Hussain armed with pistol, Shakoor and Irshad armed with hatchets emerged alongwith the road side and got them alighted from the vehicles at gun point. Muhammad Nawaz (since P.O) raised a lalkara to teach them a lesson for sending Mst. Safia Bibi his wife to Darul Aman and all of them should not be left alive. Within their views, Muhammad Nawaz (since P.O) Sabir (appellant) and Fayyaz Ahmad (since P.O) made straight firing with their respective rifles at Ashiq Hussain (deceased) and all the three fires landed under the armpit of Ashiq Hussain (deceased), who fell down. Haq Nawaz made pistol fire which hit Jamil paternal cousin of the complainant on the shin of his right leg. Fida Hussain also fired with pistol hitting Shakir paternal nephew of the complainant on his left shin. When they tried to apprehend the accused, they pointed firearm weapons and said that if anybody would come near to them, he would not let him alive. On hearing the sound of firing as well as the hue and cries, the people from the locality attracted to the spot, whereas, the accused persons on seeing them coming fled away while making aerial firing. They attended the injured, but Ashiq Hussain succumbed to the injuries at the spot.
The motive behind the occurrence was alleged to be that Mst. Safia Bibi wife of Nawaz accused (since P.O) being angry with her husband after filing a suit for dissolution of marriage at Bahawalpur had gone to Darul Aman and the accused had suspicion that they (complainant party) had sent her to Darul Aman after filing suit for dissolution of marriage. Due to this grudge, the accused Muhammad Nawaz, Sabir, Fayyaz Ahmad, Haq Nawaz, Nazir Ahmad, Fida Hussain Shakoor and Irshad in consultation with each other and on the instigation and abetment of Bashir Ahmad and Murad Mai had committed murder of Ashiq Hussain (deceased) while firing, whereas, Jamil Ahmad and Shakir injured were taken to Hospital on Daala (Toyota Hilux) at Mianwali Qureshia.
3. Initially the investigation of this case was conducted by Feroz Ahmad, Inspector/SHO (PW-11) and during the investigation, the dead body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under sections 161 Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrence was got prepared, injuries statements of Shakir Sultan PW and Muhammad Jameel were prepared, car and Dala were taken into custody vide recovery memos Ex. PD and Ex. PC, statements of the recovery witnesses were recorded, pieces of bangles from the place of occurrence were also taken into possession vide recovery memo Ex. PH, proclamations under section 87, Cr.P.C. against the absconding accused were got published. On 17.3.2008, investigation was entrusted to Jam Muhammad Jameel, S.I. (PW-12), who on 27.3.2008 formally arrested the appellant and on 28.3.2008, on the disclosure of the appellant rifle (P.11) was taken into possession alongwith three live cartridges (P.12/1-3) vide recovery memo Ex. PI and after completion of the investigation a challan was submitted in the Court.
4. At the commencement of the trial the learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. to the appellant framed the charge against him on 10.3.2011 to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as thirteen witnesses in support of its case. The ocular account of the incident in question was furnished by Waheed Murad complainant (PW-1), Muhammad Jameel (PW-9) and Shakir (PW-10), who also deposed about the motive while PW-2 Munir Hussain, identified the dead body of the deceased before the police as well as before the doctor prior to autopsy. The medical evidence was provided by Dr. Muhammad Azam, (PW-6), who on 08.06.2002 at 9.00 a.m. had conducted postmortem examination on the dead body of Ashiq Hussain deceased while Rasheed Ahmad, Patwari (PW-7) on the pointing out of the witnesses and on the instructions of the police prepared scale site plan. PW-11 Feroz Ahmad, Inspector/SHO and Jam Muhammad, S.I. (PW-12) deposed about the various steps taken by them during the course of investigation of this case while PW-13 Muhammad Khalid, 301/C, escorted the dead body of the deceased to mortuary for autopsy. The remaining evidence produced by the prosecution was almost formal in nature.
6. In his statement recorded under section 342, Cr.P.C., the appellant had denied and controverted all the allegations of fact levelled against him by the prosecution and he also professed his innocence. However, to a question that “Why this case is registered against you and why the PWs have deposed against you?” Sabir appellant replied as under:
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