Stereo HCJDA-38

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

1. Criminal Appeal No.76-J of 2014

(Muhammad Abbas Vs. The State)
&
2. Murder Reference No.36 of 2014
(The State Vs. Muhammad Abbas)

Date of hearing: 14.04.2017

Appellant by: Ms. Saiqa Javed, Advocate.

Complainant by: Mr. Muhammad Ashraf Kamboh, Advocate.

State by: Mr.Munir Ahmad Sial, DPG with Rasheed,

A.S.I.

QAZI MUHAMMAD AMIN AHMED, J:-.- Muhammad

Abbas, appellant herein, is bracing the gallows; he stands convicted on
two counts of homicide under Clause (b) of Section 302 of the
Pakistan Penal Code, 1860 for committing Qatl-e-Amd of Tawasin, 50
and Rashid, 24, hereinafter referred to as the deceased, the latter being
no other than his own son. The incident occurred on 28-6-2013 at 1:00
p.m. within the area of village Harchand situating 7 miles away from
Police Station Saddar Farooqabad District Sheikhupura; it was
reported straight at the police station through application (Ex.PB/2)
presented by Muhammad Azmair (PW-6) at 2:15 p.m. According to
the complainant, his paternal cousin Kiran married Rashid deceased;
the couple lived happily, however, appellant’s relationship with his
son Rashid deceased was far from congenial, as the latter strived to set
up his own household without extending any financial support to the
former. On the eventful day, Rashid solicited Tawasin’s intervention
for reconciliation with the appellant and it is in this backdrop that both
the deceased went to visit the appellant followed by the PWs. The
appellant was accompanied by two unknown persons when the
Criminal Appeal No.76-J of 2014 & 2
Murder Reference No.36 of 2014

deceased approached him, soon whereafter, the appellant shot Tawasin

deceased on the back of his head and flank followed by a fire shot to
Rashid deceased, who attempted to flee but was once again shot in the
lane; the accused decamped from the scene; when attended by the
PWs, the deceased had succumbed to their injuries.
Dr. Masroor Kaifi (PW-4) conducted autopsy at 9:30 p.m. and
noted two firearm entry wounds on the dead body of Tawasin with
multiple apertures on left side of head as well as on left side of mid
abdomen; aperture on the head had blackening around the wound.
Arshad deceased was also fired from a close blank, a wound of entry
on right side of head with its exit was noted with blackened margins
accompanied by tattooing, five entry apertures on front of upper part
of right arm with their exits along with a wad find mentioned in the
autopsy report. Deaths occurred immediately and time between death
and autopsy was estimated between 6 to 12 hours.
Muhammad Nawaz, SI (PW-9) secured blood from the crime
scene besides taking other investigative steps; the appellant was
arrested on 2-7-2013; pursuant to a disclosure, he led to the recovery
of 12-caliber shotgun (P7) on 5-7-2013. Prosecution is clueless about
the unknown accomplice. Indicted before the learned Sessions Judge
Sheikhupura, the appellant claimed trial on 24-10-2013, pursuant
whereto, prosecution produced as many as nine witnesses besides its
reliance on forensic reports. Prosecution case is anchored on ocular
account furnished by Muhammad Azmair (PW-6) and Muhammad
Farooq (PW-7), both of them with one voice pointed their accusing
finger on the appellant who confronted prosecution evidence with the
following plea:-
“It is a false case and PWs deposed against me falsely.
I was not present in my house at the time of occurrence.
In fact Muhammad Farooq PW had illicit liaison with
Kiran wife of Rashad deceased/victim as previously he
resided in her house at Lahore and after her marriage
with Rashad he shifted to District Sheikhupura. He used
to visit Kiran even in my house and an altercation took
place between him and Rashad on the day of occurrence.
Criminal Appeal No.76-J of 2014 & 3
Murder Reference No.36 of 2014

Farooq PW came with the gun and hit fire shots to

Rashad and Tawaseem tried to save Rashad was hit in the
process by Farooq. I am innocent.”

Unimpressed by the plea taken, the learned Sessions Judge

Sheikhupura proceeded vide impugned judgment dated 18-1-2014 to
convict the appellant on both counts as mentioned above and
sentenced him to death on each; he is further directed to pay
compensation in the sum of Rs.100,000/- on each count or to undergo
six months simple imprisonment in the event of default, vires whereof,
are being questioned through Crl. Appeal No.76-J of 2014; the State
seeks confirmation of death penalty vide Murder Reference No.36 of
2014; these are being decided through this single judgment.
2. Learned counsel for the appellant contends that
prosecution case is far from being probable as apparently no earthly
reason was there to actuate the appellant to take life of his own son
and in this backdrop motive cited by the prosecution, according to the
learned counsel, was but preposterous. It has further been argued that
presence of both the eye witnesses at the crime scene is not confidence
inspiring and according to her, occurrence appears to have taken place
un-witnessed. Relying upon prosecution’s failure to establish the
motive and inconsequential recovery of gun P-7, the learned counsel
has alternately prayed for alteration of death penalty into
imprisonment for life. Contrarily, the learned Law Officer assisted by
learned counsel for the complainant has defended the impugned
judgment on the ground that prosecution succeeded to bring home the
charge beyond reasonable doubt leaving no space to entertain any
hypothesis of innocence. Given the magnitude of loss of life,
confirmation of death penalty has been prayed for.
3. Heard. Record perused.
4. The web of relationship between the deceased and
prosecution witnesses as well as the appellant is a common ground at
the bar. Tawasin deceased is real father of Muhammad Azmair
complainant (PW-6), related in second degree with Kiran, widow of
Criminal Appeal No.76-J of 2014 & 4
Murder Reference No.36 of 2014

Rashid deceased; as pointed out above, Rashid deceased is appellant’s

own immediate kith and kin. In this factual backdrop, it would be
rather hard to entertain any hypothesis of substitution, as seemingly no
purpose is lurking behind swapping the appellant with anyone else in
the presence of other surviving family members that included Rashid’s
real brother as well. Explanation offered by the appellant merely adds
insult to injury, if at all, Muhammad Farooq (PW-7) was carrying on
with Rashid’s wife, he would have been the choice target as Tawasin
figured nowhere in the alleged affair to be gunned down in cold blood.
The couple had tied the knot just four months before the calamity
struck them. Similarly argument that the witnesses were not at the
crime scene is beside the point; both of them have satisfactorily
explained as to what brought them at the crime scene. Given the
purpose of visit on the fateful day, their convergence at the spot cannot
be termed as improbable or unnatural; both of them faced cross-
examination unscathed; there is nothing on the record to even
obliquely impeach their loyalty to the oath administered upon them in
the witness-box. In the absence of casings for forensic analysis,
recovery of gun P-7 found in working order is at least consistent with
the injuries sustained by both the deceased. Once prosecution case is
found firmly structured on ocular account with motive inexorably
focused upon the appellant, reference to absence of casings at the spot
is beside the mark; the case is proved to the hilt and the learned trial
Judge rightly placed implicit reliance on the statements of the
witnesses; it certainly does not call for any interference by this Court.
Consequently, Crl. Appeal No.76-J of 2014 fails and this brings
before us the plea of alternate sentence. Both the killings that involved
prolicide as well, were absolutely unprovoked. Rashid deceased’s
desire to evolve a blissful conjugal union is not far to seek and he still
wanted to mend fences with his estranged father, however, lost his life
in attempt to strike a balance in the family. Tawasin deceased being
from amongst his in-laws, unsuspectingly offered his good offices, he
too paid a heavy price for an innocent gesture. Argument about
 Criminal Appeal No.76-J of 2014 & 5
Murder Reference No.36 of 2014

inadequacy of the motive or prosecution’s failure to prove the same

does not hold water as there existed no traditional/conventional motive
between the son and the father; it was rancor going on for some time,
a cause that catapulted the incident. Given the magnitude of human
loss and background referred to above, we have not been able to find
out any judicially recognized extenuating or mitigating circumstance
to visit the appellant with alternate penalty of imprisonment for life,
thus, death sentence awarded to the appellant is CONFIRMED.
Murder Reference is answered in the AFFIRMATIVE.

(Asjad Javaid Ghural) (Qazi Muhammad Amin Ahmed)

Judge Judge

Approved for Reporting

Azmat*