1999 PLP 1398 (YLR)

ASIF SAEED KHAN KHOSA, J.‑‑ Faiz Muhammad appellant was convicted by the learned Sessions Judge, Dera Ghazi Khan vide judgment dated 20‑7‑1995 for an offence under section 302(a), P.P.C. and was sentenced to death as Qisas. He has challenged his conviction and sentence before this Court through Criminal Appeal No.178 of 1995. We have heard his appeal alongwith Murder Reference No.198 of 1995 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution story narrated in the F.I.R. was that at about 9‑00 a.m. on 6‑7‑1993 Muhammad Bakhsh complainant was sitting on a Hamacha (a big cot) with his son Muhammad Yaqoob outside his house in Rukan Abad Colony within the area of Police Station Civil Lines, Dera Ghazi Khan. Mazhar and Naveed P.Ws., residents of the same colony, were also sitting with them on the Hamacha. In the meanwhile Faiz Muhammad appellant came there and asked Muhammad Yaqoob to go with him as he had to tell something to Muhammad Yaqoob. Soon after that the complainant, etc. heard the cries of Muhammad Yaqoob, they rushed to the spot and saw the appellant giving four Chhurri blows to Muhammad Yaqoob which landed on his back, left elbow and left buttock. Upon receipt of those blows Muhammad Yaqoob fell at the spot and became unconscious. The appellant then fled away towards his own house. Muhammad Yaqoob was immediately taken to a hospital but, despite efforts made by the doctors, he succumbed to his injuries and died. The motive stated in the F.I.R. was that the appellant had teased the complainant's younger son Hafiz Zahoor Ahmad a few days ago upon which Muhammad Yaqoob had reprimanded the appellant and had beaten him up with fists and kicks. At that occasion the appellant had issued threats to Muhammad Yaqoob. It was statedly for that grievance, that the appellant has now killed the complainant's son Muhammad Yaqoob.

3. Leaving the dead body of Muhammad Yaqoob at the hospital in the care of Mazhar and Naveed P.Ws. the complainant proceeded to report the matter to the local police. He went to Police Station Civil Lines, Dera Ghazi Khan and lodged F.I.R. No. 117 which was recorded by Ahmad Nawaz, S.I. (P.W.7) at 3‑30 p.m. on the same day for an offence under section 302, P.P.C.

4. After recording the statement of the complainant Ahmad Nawaz, S.I. (P.W.7) took up the investigation of this case, proceeded to the hospital, prepared injury statement and inquest report regarding the dead body of Muhammad Yaqoob and sent the same to the mortuary for autopsy. He then went to the place of occurrence, took into possession blood‑stained earth, inspected the place of occurrence, prepared a rough site- plan thereof and recorded the statements of witnesses.

5. Medico‑legal examination of the injured Muhammad Yaqoob was conducted by Dr. Fayyaz Karim Leghari (P.W.5) at 9‑45 a.m. on 6‑7‑1993 who found four injuries on his person which had all been caused by a sharp‑edged weapon within a duration of six hours. All the injuries had been kept under observation.

6. Post‑mortem examination of the dead body of Muhammad Yaqoob was conducted by Dr. Muhammad Safdar Hashmi (P.W.6) at 5‑15 p.m. on 6‑7‑1993. He had found four injuries on the dead body which were all ante- mortem and caused by a sharp‑edged weapon. Injuries Nos. 1 and 2 were dangerous to life whereas injuries Nos.3 and 4 were simple in nature. Injury No.2 had proved fatal. Death had occurred due to haemorrhage and shock caused by injury to right lung. Injury No.2 individually and Injuries Nos.l and 2 collectively were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the time elapsing between the injuries and death was within a few hours whereas the time elapsing between death and post‑mortem examination was within three hours.

7. After the post‑mortem examination of the deceased Ahmad Nawaz, S.I. (P.W.7), the Investigating Officer, secured the last- worn clothes of the deceased. He arrested the appellant on 12‑7‑1993 and on the same day recovered a blood‑stained Chhurri from the appellant. He then got a formal site plan of the place of occurrence prepared by a Patwari. Thereafter, he completed the other formalities, finalized his investigation and submitted a challan in respect of this case.

8. At the commencement of the trial. the learned trial Court framed a charge with one head under section 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial.

9. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. Mian Muhammad Bakhsh complainant (P.W.9) and Naveed Shahid (P.W.10) furnished the ocular account of the incident. The motive set up by the prosecution was stated by Mian Muhammad Bakhsh complainant (P.W.9) and Zahoor Ahmad (P. W.11) Dr. Fayyaz Karim Leghari (P.W.5) and Dr. Muhammad Safdar Hashmi (P.W.6) provided the medical evidence. Muhammad Ayub (P.W.2) deposed about the. recovery of blood‑stained Khanjar effected from the appellant. Ahmad Nawaz, S.I. (P.W.7) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

10. In his statement recorded under section 342, Cr.P.C. Faiz Muhammad appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He maintained that he had been falsely implicated in this case, the witnesses had deposed against him on account of suspicion and that the deceased and his family had many enemies. The appellant opted not to make any statement on oath under section 340(2), Cr.P.C. He, however, tendered copies of certain F.I. Rs. in his defence.

11. At the conclusion of the trial, the learned Sessions Judge, Dera Ghazi Khan convicted and sentenced Faiz Muhammad appellant as noticed and detailed above, Hence, the present appeal and the connected Murder Reference before this Court.

12. We have heard the learned counsel for the appellant and the State and have also gone through the record of this case with their assistance.

13. At the very outset, the learned counsel for the appellant has submitted that he does not challenge the involvement of the appellant in the occurrence in question and the role played by him during the same. He has, however, maintained that on account of the fact that the prosecution had failed to prove the alleged pre‑existing motive set up by it against the appellant, the immediate cause of the occurrence was shrouded in mystery and the recovery of weapon of offence from the appellant had been discarded by the learned trial Court, the appellant deserves concession in the matter of sentence. As against that the learned counsel for the State has argued that, the prosecution had successfully proved the guilt of the appellant to the hilt and that no mitigating factor exists on the record so as to reduce the appellant's sentence.

14. After hearing the learned counsel for the parties and going through the record we have found that the learned counsel for the appellant is quite justified in not challenging the finding of guilt recorded by the learned trial Court against the appellant. The prosecution had indeed succeeded in proving the guilt of Faiz Muhammad appellant beyond reasonable doubt. Mian Muhammad Bakhsh complainant (P.W.9) and Naveed Shahid (P.W.10) were natural witnesses of the occurrence and they had made consistent statements regarding the main occurrence. There was absolutely no background of ill- will or animosity between these witnesses and Faiz Muhammad appellant so as to prompt these witnesses to falsely implicate the appellant in this broad daylight occurrence. The medical evidence had furnished ample support to their statements. They have inspired our confidence and we have found no reason to doubt their veracity. Thus, we have no hesitation in concluding that the appellant had committed the murder of Muhammad Yaqoob deceased and was rightly convicted for an offence under section 302, P.P.C.

15. We are, however, of the considered opinion that after convicting the appellant for an offence under section 302, P.P.C. the learned trial Court was not legally correct in sentencing him under section 302(a), P.P.C. There was neither any confession of guilt made by the appellant nor the prosecution witnesses had been subjected to Tazkiya‑tul Shuhood so as to attract a sentence of Qisas under section 302(a), P.P.C. The appellant's sentence of Qisas under section 302(a), P.P.C. is, thus, converted by us into one Ta'zir under section 302(b), P.P.C.

16. We have also considered the question of quantum of sentence with all seriousness. The learned counsel for the appellant is quite right in maintaining that the prosecution had failed to prove the motive set up by it against the appellant. Mian Muhammad Bakhsh complainant (P.W.9) had not himself witnessed the motive incident allegedly taking place a few days before the present occurrence. Zahoor Ahmad (P.W.11) had not made any statement before the Investigating Officer regarding the alleged incident of motive. His first statement in that regard was made before the learned trial Court about two years after the incident of murder. Such a belated statement made by this witness on a crucial aspect of the case has failed to inspire our confidence. Apart from that, we have also noticed that as to what transpired between the deceased and the appellant immediately proceeding the occurrence had also remained shrouded in mystery. It was the prosecution's own case that the appellant and the deceased had peacefully gone away together from the place where the eye‑witnesses were sitting and that the place of occurrence was not visible from the original place of presence of the said witnesses. It was only after hearing the cries of the deceased that those witnesses had reached the place of occurrence and had witnessed the occurrence when it was already in progress. Thus, it was known as to what had transpired‑between the deceased and the appellant immediately before the causing of injuries by the appellant to the deceased. In this state of the evidence, i.e. absence of convincing proof of the existing motive and immediate cause of the occurrence remaining shrouded in mystery, we have felt it to be unsafe to uphold that sentence of death passed against the appellant by the learned trial Court. In this context we are also not unmindful of the fact that the appellant is a young lad and he had no criminal antecedents to his discredit. Therefore, in the exercise of our discretion in the matter of sentence we set aside the sentence of death passed against the appellant by the learned trial Court and substitute the same with imprisonment for life. The appellant shall also be entitled to the benefit under section 382‑B, Cr.P.C. After noticing that the learned trial Court had failed to order payment of compensation by the appellant to the heirs of Muhammad Yaqoob deceased under section 544‑A, Cr.P.C. We issued notice in that regard to the appellant during the hearing of this appeal and the said notice was accepted on behalf of the appellant by his learned counsel. It is hereby ordered that the appellant shall pay a sum of Rs.40,000 to the heirs of the deceased by way of compensation under section 544‑A, Cr.P.C. failing which he shall suffer simple imprisonment for six months.

17. Before parting with this judgment we have thought it fit to mention that there is no clear proof available on the record of this case regarding the exact age of the appellant on the day of occurrence so as to consider whether or not the appellant's case attracts the provisions of section 306(a) read with section 308, P.P.C. The Certificate of Identification available on the police record showed that the appellant was already 18 years old at the time of occurrence. As against that the statement of the appellant recorded under section 342, Cr.P.C. about two years after the occurrence also recorded his age to be 18 years. It was suggested to Zahoor Ahmad (P.W.11) by the defence itself that the appellant might be 30/32 years of age. Therefore, in this state of the record about the age of the appellant at the time of occurrence we could not safely apply to this case the principle laid down by the Honourable Supreme Court in the case of Khalil‑uz‑Zaman v. The Supreme Appellate Court, etc. (PLD 1994 SC 885).

18. The upshot of the above discussion is that the appellant's appeal is partly allowed in the terms recorded in paragraph No. 16 above.

19. As the sentence of death passed by the learned trial Court against Faiz Muhammad appellant has been set aside by us, therefore, Murder Reference No.198 of 1995 is hereby answered in the negative. Death sentence is not confirmed. N.H.Q./F‑88/L Sentence reduced