2008 PLP 997 (YLR)

ABDUL SHAKOOR PARACHA, J.

Muhammad Safdar son of Muhammad Ashiq, appellant herein, along with Abu Bakar son of Muhammad Aslam was tried in case F.I.R. No.352, dated 27-10-1997 under sections 302/34, P.P.C., registered at Police Station Garh, District Faisalabad. Through judgment, dated 20-6-2000 of the Additional Sessions Judge, Faisalabad, Muhammad Safdar appellant has been convicted under section 302(b), P.P.C. and sentenced to death. He was also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased, failing which it was ordered that he would undergo R.I. for six months. His co-accused Abu Bakar was, however, acquitted of the charge by giving the benefit of doubt. Muhammad Safdar, convict, has challenged his conviction and sentence through Criminal Appeal No.1094 of 2000. Murder reference has also been sent to this Court for confirmation of death sentence awarded to the appellant. Muhammad Iqbal complainant has also filed Criminal Revision No.501 of 2000 seeking enhancement of the amount of compensation from Rs.50,000 to Rs.2 lac to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. All the above stated matters are being decided through this judgment.

2. Brief facts of the case, as narrated in the F.I.R. No.352 of 1997 (Exh.P.B./1) registered by Ali Muhammad, HC, on 27-10-1997 on the basis of the statement Exh.PB of Muhammad Iqbal, are that about 8 p.m. the same day complainant Muhammad Iqbal along with his brother Abdul Jabbar (deceased), Muhammad Akram son of Noor Muhammad, Abdul (Mani son of Ghulam Muhammad was sitting at wheat grinding machine of Allah Ditta son of Sardar and all were listening tape-recorder; suddenly appellant Safdar armed with carbine .12 bore and Abu Bakar armed with pistol came there; Abu Bakar raised a Lalkara that Abdul Jabbar be taught a lesson for siding the Pathans; in the meanwhile, Muhammad Safdar while standing in the door fired with his carbine at Abdul Jabbar hitting on his forehead and lower side of right eye; Abu Bakar fired with pistol but the same missed; the complainant along with Muhammad Akram and Abdul Ghani witnessed the occurrence; thereafter Safdar and Abu Bakar while firing in the air went to their respective houses; upon hearing the reports of firing, Ghulam Hussain son of Ali Muhammad and Muhammad Ashraf son of Muhammad Sharif attracted to the place of occurrence; the complainant with the assistance of Ghulam Hussain and Muhammad Ashraf at once removed the injured Abdul Jabbar in a car to the Civil Hospital Tandlianwala but he succumbed to the injuries upon reaching the hospital. According to the complainant, the motive behind the occurrence was that 16 years prior to the instant occurrence,, Mehndi, maternal uncle of Safdar (appellant) was murdered by Zahid Khan Pathan etc.; Muhammad Safdar had the apprehension that Gujjar Bradri was supporting the Pathans and due to said grievance Muhammad Safdar and Abu Bakar in furtherance of their common intention committed the murder of Abdul Jabbar deceased, brother of the complainant.

3. After registration of the case, Muhammad Amir Gondal, S-I. /S. H.O. on 27-10-1997 examined the dead-body of the deceased, prepared the inquest report Exh. P. E., injury statement Exh. P. F. secured the blood-stained earth vide memo. Exh. P. G., recorded the statements of the P.Ws., and prepared rough site plan Exh.P.J. without scale. Last-worn clothes of the deceased were taken into possession vide memo. Exh.P.D. on 28-10-1997. He got prepared the site-plan Exh.P.A. and P.A./1 from the Draftsman. Safdar appellant was arrested on 16-11-1997. He recovered the carbine on 21-11-1997 on disclosure made by Muhammad Safdar appellant, which was taken into possession vide memo. Exh.P.H. from the place the site-plan whereof was prepared as Exh.P.H.11. Abu Bakar, acquitted co-accused, was arrested on 11-1-1998 by Muhammad Riaz, S-I./S.H.O. On the completion of the investigation, report under section 173, Cr.P.C. was submitted in Court.

4. The appellant along with his co-accused was charged for the commission of the offence, to which they pleaded not guilty and claimed trial.

5. Dr. Munawar Ali, Medical Officer, Civil Hospital Tandlianwala, District Faisalabad, P.W.6, who conducted the post-mortem examination on the dead-body of deceased Abdul Jabbar on 28-11-1997 found the following injuries on the dead-body:

(1) A lacerated wound 1 c.m. in diameter present on the forehead, penetrating into the skull slight blackening present. (2) A lacerated wound present on the face below the right eye about 1 c. m. in diameter with slight blackening penetrating into the head also. According to the doctor, the death had occurred due to brain injuries Nos.1 and 2 caused with fire-arm causing brain damage and ultimately death. All the injuries were ante-mortem and sufficient to cause death. Time that elapsed between injuries and death was one hour and between death and post-mortem was 14 hours.

6. The prosecution to prove its case against the appellant produced Muhammad Iqbal, complainant, as P.W.7, whereas Muhammad Akram, another eye-witness, appeared as P.W.B. The medical evidence was furnished by Dr. Munawar Ali, P.W.6 who proved the post-mortem report Exh.P.D. and diagram Exh.P.D./1. He also signed the inquest report Exh.P.E. and injury statement Exh. P. F. The prosecution also relied on the recovery of carbine .12 bore P.3 and one live cartridge P.4 recovered from the appellant while in police custody vide recovery memo. Exh.P.H: which was attested by Muhammad Akram son of Noor Muhammad who appeared as P.W.B. Report of the Chemical Examiner regarding the blood-stained earth Exh.P.K. and that of the Serologist Exh. P. K./1 were also produced.

7. After completion of the prosecution evidence; statement of accused Muhammad Safdar as well as of acquitted accused Abu Bakar were recorded under section 342, Cr.P.C. Both of them claimed themselves to be innocent. Muhammad Safdar, appellant, stated that on the fateful day the deceased was fired at by some unknown person from the back door of the room where Atta-Chakki is installed and unfortunately he along with Abu Bakar was named as assailant in the case. He denied the motive and asserted that the same was imaginary one; Mehndi Khan was murdered when the accused was not yet born. According to him; the motive was false and the prosecution concealed the story. In his statement under section 342, Cr.P.C., the appellant also produced his school-leaving certificate Exh.D.C. In rebuttal to" the same, birth certificate of appellant Safdar was placed on the record as Exh.P.L. by the prosecution. The appellant did not opt to appear in the witness-box under section 340(2), Cr.P.C.

8. The learned Additional Sessions Judge while relying on the ocular account furnished by P. Ws.7 and 8 Muhammad Iqbal and Muhammad Akram, medical evidence, recovery of carbine and considering the statement of the appellant proceeded to convict the appellant as aforesaid, whereas observed that the involvement of accused Abu Bakar appears to be doubtful. According to the learned Additional Sessions Judge, it is also not established that he shared the common intention with the appellant, and by giving the benefit of doubt he acquitted said Abu Bakar.

9. The learned counsel for the appellant contends that a definite motive was asserted by the prosecution, which has not been proved on the record; the prosecution has not produced the independent witness Abdul Ghani therefore adverse inference should be drawn against the prosecution; the story put forth by the prosecution is improbable; there was no recovery of any empty from the place of occurrence therefore no reliance can be placed on the recovery of carbine; P. Ws. 7 and 8 Muhammad Iqbal and Muhammad Akram are highly interested and inimical towards the appellant being closely related to the deceased as P,W.7 Muhammad Iqbal is his real brother and P.W.8 Muhammad Akram is his paternal cousin therefore their statements could not be accepted without independent corroboration; the trial Court has rejected and disbelieved the motive therefore the death sentence was not warranted under the law. Reliance has been placed on the case reported as Muhammad Amin v. Muhammad Khan and others 2002 SCMR 1473. Adds that the appellant fired only one shot and did not repeat it therefore he was not liable for death sentence. Relies on the case reported as Muhammad Arshad and 2 others v. The State PLD 1996 SC

122. According to the school leaving certificate Exh.D.C.; the appellant was born on 16-3-1982 and he was less than 16 years at the time of occurrence, and according to the birth certificate Exh. P. L. the date of birth of the appellant is 20-4-1978 and the appellant was about 19 years of age. In the statement under section 342, Cr.P.C. the age was recorded as 21 years on 30-3-2000 meaning thereby that at the time of occurrence on 27-10-1997 the appellant was 18 years of age; because of the fact that the appellant was of teenage he was not liable to be punished with death. Reliance has been placed on the case reported as Saiful Malook and others v. The State and others 1992 SCMR 1597. The learned counsel for the. appellant also relies on the case reported as Muhammad Hayat alias Mukhtar Ahmad v. The State PLD 1996 Lah. 279 wherein motive was not proved. Only one fatal shot was attributed to the accused and the accused being teenager death sentence awarded by the trial Court was converted into imprisonment for life.

10. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant contends that there is promptituded F.I.R. in which the accused was nominated with specific role attributed to him; the prosecution has relied on the ocular account though related but had no motive to falsely implicate the accused; medical evidence and recovery of the carbine furnishes full corroboration in the ease and the prosecution was able to prove its case against the appellant beyond reasonable, doubt. On the question of motive, the learned counsel contends that though the finding has been recorded by the trial Court that the prosecution has failed to prove motive but this fact alone does not entitle the appellant for lesser punishment but on this ground death sentence cannot be set aside because weakness and insufficiency of motive or absence of motive in the murder case cannot be considered as mitigating circumstance for awarding lesser sentence. Reliance has been placed on the case reported as Saeed and two others v. The State 2003 SCMR 747.

11. We have considered the arguments of the learned counsel for the parties and perused the record with their assistance. The prosecution has relied on the ocular account furnished by Muhammad Iqbal, complainant, P.W.7, who is real brother of the deceased Abdul Jabbar and Muhammad Akram, P.W.8 who is maternal cousin of the deceased. Both the witnesses are related to the deceased, but they have no enmity or malice to falsely implicate the accused in this case, statement of the complainant is fully corroborated by the evidence of Muhammad Akram, P.W.8 on all important points. Substitution is rare phenomenon. The ocular account is corroborated by the medical evidence furnished by Dr. Munawar Ali, P.W.6, who found fire-arm injuries on the person of deceased Abdul Jabbar. There is no previous enmity between the complainant and the accused party. Mere relationship of the witnesses with the deceased is no ground to reject their testimony. See case reported as Abdul Rashid v. The State 1997 SCMR

373. The P.Ws. are not interested, because they have no motive to falsely implicate the appellant. In the case reported as Nazir Ahmad and others v. The State PLD 1962 SC 269 and Sharafat Ali v. The State 1999 SCMR 329 it has been ruled that "interested witness" is one who has a motive to falsely implicate a person. No empty has been recovered from the spot, therefore, the recovery of the carbine P.3 is inconsequential. See case reported as Dosa v. The State 1988 SCMR 1532. But this fact alone is not sufficient to set aside the conviction. The appellant has not been able to make a convincing defence in his statement under section 342, Cr.P.C.

12. For all the above stated reasons, we are of the considered opinion that the guilt of the appellant on the record has been proved beyond any shadow of doubt. He has been rightly held guilty under section 302(b), P.P.C. by the trial Court. Since the finding of the trial Court on the record is that the prosecution has failed to prove the motive part of the case, but the same cannot be treated as mitigating circumstances in the matter of awarding punishment to the accused. According to the trial Court, weakness of the motive or its complete absence would be wholly immaterial if the prosecution is able to prove its case through the ocular evidence. If the prosecution has succeeded in establishing the offence then the presence of motive or no motive would .not be a ground for .awarding lesser punishment to the accused as held in the case of Muhammad Amin v. Muhammad Khan and others 2002 SCMR 1473 C reiterated in case of Saeed and 2 others v. The State 2003 SCMR 747 wherein it has been ruled that weakness and insufficiency of motive or absence of motive in murder cases cannot be considered as a mitigating circumstance for awarding lesser punishment. But we are of considered view that such principle would only be invoked when the prosecution has not alleged the motive, but if the motive is alleged then it becomes the duty of the prosecution to prove the same. If, however, the prosecution fails to prove the motive so alleged and it has also not proved the same through convincing evidence that the accused had committed the crime charged for then on considering non-establishment of the motive to be a mitigating circumstance, the sentence can be awarded to the accused charged for the murder having regard to the facts and circumstances of each case. Reliance can be placed on the cases reported as Bilal Ahmad v. The State 1999 SCMR 869 and Anar Gul v. The State 1999 SCMR 2303. In the above mentioned cases, the prosecution was not able to prove the motive set up by it and the Honourable Supreme Court converted the death sentence to imprisonment for life. In case reported as Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 there was no deep-rooted hostility between the parties and the accused fired only one shot and did not repeat it. It was held that all these facts cumulatively make out a case for mitigating circumstance and lesser punishment of imprisonment for life would meet the ends of justice.

13. We have examined the case from every angle. The appellant is teenager, the motive has not been proved in this case. He has been attributed one shot and did not repeat the same, therefore, the facts of this case are akin to the facts of the case reported as Muhammad Hayat v. The State PLD 1996 Lah. 279 wherein the death sentence of the accused was converted into imprisonment for life. However, we are of the opinion that awarding of Rs.50,000 as compensation to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. is not in accordance with law, the same is liable to be enhanced, and we observe that the convict is also liable to pay compensation of Rs.1 lac.

14. For what has been discussed above, while maintaining the conviction, the appeal of appellant Muhammad Safdar is dismissed. However, the death sentence is converted to imprisonment for life and he shall also pay compensation of Rs.1 lac (rupees one lac) to the legal heirs of the deceased as compensation and in default of payment of the said amount, he shall suffer further R.I. for one year. The appellant shall also be entitled to benefit of section 382-B, Cr.P.C. Murder Reference is answered in the negative. For the same reasons, criminal revision of the complainant is partly allowed and disposed of.????? Death sentence is not confirmed. H.B.T./M-528/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.