2021 P Cr (PLP)

MUHAMMAD WAHEED KHAN, J.

This judgment shall dispose of Criminal Appeal No. 100-J of 2017 filed by appellant (against his conviction and sentence) and M.R. No.42 of 2017 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant or otherwise. As both the matters have arisen out of the same judgment dated 26.01.2017 passed by the learned Additional Sessions Judge, Khushab in case FIR No.216 dated 26.09.2014 registered under sections 302/109/324/337-A(i)/337-F(i)/337-F(ii)/337-F(iii), P.P.C. at Police Station Mitha Tiwana, District Khushab, whereby appellant was convicted and sentenced as under;- (i) Under section 302(b), P.P.C. awarded death sentence as Ta'zir. He was also directed to pay compensation of Rs.50,000/- to the legal heirs of deceased Muhammad Arsalan and the said amount was ordered to be recovered as arrears of land revenue. In default whereof, he was ordered to further undergo six months simple imprisonment. (ii) Under section 324, P.P.C. awarded five years rigorous imprisonment for attempt to commit qatl-i-amd of the complainant Elahi Bakhsh and with fine of Rs.20,000/-. In default whereof, he was ordered to further undergo six months' simple imprisonment. (iii) Under section 337-A(i), P.P.C. ordered to pay a sum of Rs.20,000/- as Daman to the injured Mehboob Hasan. (iv) Under section 337-F(i), P.P.C. ordered to pay a sum of Rs.20,000/- as Daman to the injured Mehboob Hasan. (v) Under section 337-F(ii), P.P.C. ordered to pay a sum of Rs.20,000/- as Daman to the injured Muhammad Noman. Benefit of section 382-B, Cr.P.C. was also extended to the appellant. Whereas his co-accused Fakhar Iqbal was acquitted of the charge by the learned trial Court vide same judgment by extending him benefit of doubt.

2. Brief facts as narrated by the complainant Elahi Baksh while lodging FIR are as under; "That he is resident of Mouza Panja and landlord by profession. He on the fateful day i.e. 26.09.2014 at 03:30 p.m. proceeded from his house to purchase vegetables and when he was near Nazi Hotel over Adda he met with the accused Muhammad Ilyas alias Lachoo son of Khuda Bakhsh also resident of the village Panja, who asked him to return the possession of the plot pertaining to the co-accused Fakhar Iqbal son of Mani Khan otherwise he would have to face the consequences, so an altercation took place between the complainant and the accused Muhammad Ilyas alias Lachoo, who pulled out a pistol .30-bore from the folder of his Shalwar and made three successive shots with his pistol and one of the said fire shots hit the complainant on his left thigh and he after sustaining' the said injuries fell down. In the meanwhile, his son Mehboob Hasan (PW-8) and Muhammad Noman (nephew of the complainant PW-9), who were available nearby came there and snatched pistol from the assailant. The accused Muhammad Ilyas then picked up the Churri from the hotel and gave Churri blows upon the persons of Mehboob Hasan (PW-8) hitting upon his head and Muhammad Noman upon his left hand. The accused Muhammad Ilyas then while shouting lalkaras ran towards his house and after a short while he brought a .12-bore gun repeater from his house. Muhammad Arsalan (deceased) son of Muhammad Bukhsh and nephew of the complainant were then available in their shop. The accused Muhammad Ilyas raised lalkara to him and then made two successive fire shots with his gun upon Muhammad Arsalan hitting upon his both legs. Muhammad Arsalan after receiving the fire shots at the hands of the accused Muhammad Ilyas fell down, then the accused Muhammad Ilyas while shouting lalkaras fled away from the scene of occurrence which was witnessed by PWs Mehboob Hasan, Muhammad Noman and Muhammad Bukhsh son of Ahmad Khan besides the complainant. The motive behind the occurrence was that the accused Muhammad Ilyas alias Lachoo is a friend of-co-accused Fakhar Iqbal son of Mani Khan and they intended to get possession of the disputed plot, so the accused Muhammad Ilyas nourished this grudge and on the abetment of co-accused Fakhar Iqbal made a murderous assault upon the complainant and injured Muhammad Arsalan, Mehboob Hasan and Muhammad Noman. The factum of abetment was witnessed and heard by the PWs Muhammad Younis (Pw-15) and of Muhammad Iqbal son of Ali Muhammad (given-up PW) as the accused Fakhar Iqbal about one hour prior to the occurrence while sitting in his shop over Adda instigated and abetted the accused Muhammad Ilyas alias Lachoo to get possession of the plot for the accused Fakhar Iqbal and he would give him share from the plot. The complainant got recorded his statement (ExPE) to the police near Chungi No.2 Mitha Tiwana. The injured were shifted to the DHQ Hospital Jauharabad where they were medically examined, whereas Muhammad Arsalan the then injured was referred to Allied Hospital, Faisalabad where he succumbed to the injuries on 27.09.2014."

3. Dr. Nisar Ahmad, who conducted the postmortem upon the dead body of the deceased Muhammad Arsalan on 27.09.2014 at about 10:30 a.m. appeared as PW-6 and found six injuries on person of the deceased and opined that probable time which elapsed between injuries and death was about 12 hours and between death and postmortem examination was five and half hours. Whereas Dr. Ghulam Rasool appeared as PW -16, who medically examined the deceased (in injured condition), he also medically examined both the injured persons, namely, Mehboob Hasan and Muhammad Noman.

4. After registration of the case, investigation was carried out by the police and on completion of the same, report under section 173, Cr.P.C. was submitted before the learned trial Court. Thereafter, learned trial Court after observing codal formalities, framed charge against appellant along with his co-accused, which was denied by them, hence, the trial commenced.

5. In order to prove its case, prosecution produced as many as sixteen witnesses. Ocular account was furnished by the complainant/injured Elahi Bakhsh, both the injured eye -witnesses, Mehboob Hasan and Muhammad Noman and another eye-witness Muhammad Baksh, who appeared as PW-7, PW-8, PW-9 and PW-11 respectively. Muhammad Fiaz SI, who conducted investigation of the case appeared as PW-14, whereas remaining PWs were of formal in nature. Thereafter, prosecution closed its evidence by producing certain documentary evidence.

6. After recording the prosecution evidence, appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations levelled against him. He did not opt to appear as his own witness under section 340(2), Cr.P.C., nor produced any evidence in his defence.

7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellant in the above mentioned terms, hence, this appeal and Murder Reference.

8. Learned counsel for the appellant in support of instant criminal appeal submits that the prosecution has failed to prove its case against the appellant beyond shadow of reasonable doubt; that the story narrated by the complainant while lodging the instant crime report is highly improbable and cannot be comprehended at any stretch of imagination and the impugned judgment passed by the learned trial Court is based on surmises and conjectures; that all the PWs are not only closely related to the deceased but also inter se, hence, they are highly interested witnesses, therefore, conviction cannot be based on their evidence and no other independent witness was produced by the prosecution to prove the culpability of the appellant. Lastly prays that by accepting the instant appeal, appellant be acquitted of the charge.

9. Conversely, learned Additional Prosecutor General assisted by the learned counsel for the complainant strongly controverted the arguments advanced by the learned counsel for the appellant and submits that the prosecution has ably proved its case up to the hilt against the appellant; that the matter was reported to the police with utmost promptitude wherein accused was specifically nominated in the FIR with a role he played during the incident; that the appellant had not only mercilessly killed the deceased but also caused the injuries on three persons belonging to the complainant party; that the pistol 30 bore was snatched by PWs from the appellant at the place of occurrence, whereas during the course of investigation he got recovered the gun .12 bore, so, instant appeal being meritless be dismissed by maintaining the conviction and sentence awarded to the appellant by the learned trial Court.

10. We have heard the arguments of learned counsel for the parties and have perused the record with their assistance.

11. The alleged incident as stated in the FIR took place at 3:30 p.m. on 26.09.2014, whereas the matter was reported to the police at 4.10 p.m. on the same day and the distance from the place of occurrence and Police Station is 4 kilometers as per relevant column of FIR. So under the circumstances, we observe that the crime report was lodged spontaneously and such spontaneity in reporting the matter to police rules out the pre-consultation and due deliberation on part of the complainant party. The appellant is named in FIR with specific role of inflicting injuries not only on the person of the deceased but also to the injured PWs (three in number) and at the same time the names of witnesses are duly mentioned in the instant crime report. Both the parties were previously known to each other, hence, chance of mis-identity is also ruled out.

12. In order to prove the oral stance, the prosecution has produced the complainant Elahi Bakhsh as PW-7, both the injured as well as eye-witnesses, Mehboob Hasan and Muhammad Noman as PW-8 and PW-9, whereas another eye- witness Muhammad Baksh as PW-11. While narrating the incident, complainant, who is also paternal uncle of the deceased Muhammad Arsalan stated that on 26.09.2014 at 3:30 p.m. when he was available at Adda for purchasing vegetables, the appellant threatened him to vacate and hand over the possession of the plot to Fakhar Icibal co-accused (since acquitted) and on his refusal, he made three successive pistols shots on him, his son Mehboob (PW-8) and his nephew Muhammad Noman (PW-9) attracted at the spot and snatched pistol from possession of the appellant, then appellant picked up a "Churri" and gave both of them "Churri" blows, the appellant thereafter ran towards his house and brought .12 bore repeater gun and made two fire shots at Muhammad Arsalan deceased, which hit at his both legs who fell down and thereafter, succumbed to the injuries on the following day of the occurrence i.e. 27.09.2014. Other PWs Mehboob Hasan (PW-8) who is the real son of the complainant, Muhammad Noman (PW-9) who is nephew of the complainant and Muhammad Bakhsh (P W-11) who is father of the deceased also deposed before the learned trial Court in a similar manner. All the three PWs except Muhammad Bakhsh (PW-11) had stamp of injuries on their persons, so, their presence at the place of occurrence cannot be denied. All of three were medically examined and their Medico Legal Reports are duly supporting the prosecution version. It was the day light occurrence which took place in a Bazar and it cannot be presumed that the same was un witnessed, especially in presence of all injured PWs. All the prosecution witnesses remained consistent qua the culpability of accused and stood to the test of cross-examination successfully and intrinsic worth of their evidence qua the time, date, place, mode and manner of occurrence could not be uprooted by the defence side. Their evidence not only rings true but also fits in the probability and other circumstances of the case. The appellant is a sole perpetrator of the incident. As far as the argument of learned counsel for the appellant that the co-accused namely, Fakhar Iqbal was acquitted while disbelieving the same set of evidence is concerned, suffice it to say that he was not attributed any overt act rather according to the own story of the prosecution, he was not available at the crime scene and during the course of investigation he was not even arrested by the police. So, we find that case of present appellant is quite distinguishable from his co-accused and all the injuries either on person of deceased or on persons of injured PWs are attributed to him only. So under the circumstances, we fully believe the truthfulness of the testimony adduced by the eye- witnesses.

13. As far as the recovery of weapon of offence qua the appellant is concerned, according to the prosecution story weapon of offence i.e. .30 bore pistol was snatched from the appellant by the PWs at the crime scene and during the course of investigation he led to the recovery of gun .12 bore, the Investigating Officer secured two shot shell cases of .12 bore and two empties of .30 bore pistol from the crime scene and the same were sent to the office of Punjab Forensic Science Agency for forensic analyses and the weapon of offence allegedly recovered from the possession of the appellant was found wedded with the empties, hence, the evidence of recovery lends full corroboration to the ocular version.

14. As far as motive part of the incident is concerned, as the appellant on behest of acquitted co-accused Fakhar Iqbal wanted to dispossess the complainant party from a plot and on refusal the appellant had committed the incident. In this regard, we have perused the record and find that except oral assertion, there is no documentary proof qua the dispute of possession of a plot between the complainant party and Fakhar Iqbal acquitted co-accused is available on record. Muhammad Fiaz SI/Investigating Officer who appeared as PW-14 while answering a question during the course of cross-examination with respect to the motive stated as under;- "It is correct that the complainant party did not produce any documentary proof regarding the ownership/possession (i.e. the about the dispute between the complainant party and the accused of abetment Fakhar Iqbal). It is correct that there no one else is the witness about the aforesaid dispute between the complainant and the accused Fakhar Iqbal. It is incorrect to suggest that the accused Fakhar Iqbal joined investigation since 26.09.2014 to 08.10.2014. Volunteered that the accused joined the investigation on 08.10.2014. It is correct that I deferred the arrest of the accused Fakhar Iqbal on 08. 10.2014." From perusal of evidence of above said PW, one thing is clear that the prosecution remained unsuccessful to prove the motive part of the incident.

15. Since we have already believed the evidence of prosecution qua the culpability of appellant as discussed above, so, we hold that the prosecution has successfully proved its case against him beyond reasonable doubt and the learned trial Court has rightly convicted him under sections 302(b)/324/337-A(i)/337-F(i)/337-F(ii), P.P.C. and sentenced him accordingly.

16. However, as far as death sentence awarded to appellant is concerned, we find an extenuating circumstance in his favour. As we have observed that motive has not been proved by the prosecution against the appellant and the law is settled by now that if the prosecution sets a specific motive, it is bound to prove the same and if it does not prove, same reacts against the sentence of death of the appellant/accused. In this regard, we are guided by the dictum laid down in various judgments by the august Supreme Court of Pakistan. In this regard reliance is placed on the judgment passed by the august Supreme Court of Pakistan in case reported as "Haq Nawaz v. The State" (2018 SCMR 21), in which it has been observed as under;- "After hearing the learned counsel for the parties and going through the record we have observed that the High Court had categorically concluded that the motive set up by the prosecution had not been proved by it. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148).

17. So, by treating this factor as mitigating circumstance in favour of appellant his conviction under section 302(b), P.P.C. is maintained but his sentence of death is converted into life imprisonment. The amount of compensation and sentence in its default as well as other convictions and sentences awarded to the appellant under sections 324/ 337-A(i)/337-F(i)/337-F(ii), P.P.C. shall remain intact. All the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. shall also be extended to him. With this modification in his sentence, instant appeal to his extent is dismissed however, Murder Reference No.42 of 2017 is answered in NEGATIVE and his death sentence is NOT CONFIRMED. JK/M-97/L Sentence altered.