2006 P Cr (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

The appellant Muhammad Nasrullah, aloig with his father Boota and one Muhammad Hanif, was tried by the learned Additional Sessions Judge, Faisalabad, in lieu of case F.I.R. No.405 registered at Police Station Lundianwala on 24-9-1996 for offences under sections 302/34/109, P.P.C. It may be noted that the learned trial Court inadvertently mentioned case F.I.R. No.605 instead of 405 on the first page of the impugned judgment. Vide judgment dated 24-4-1999, the learned trial Judge, while acquitting Boota and Muhammad Hanif, convicted the appellant for offence under section 302(b), P.P.C. and sentenced him to death plus payment of rupees fifty thousands, as compensation, to the legal heirs of the deceased, in default in payment whereof to undergo R.I. for six months.

2. Aggrieved by his above noted conviction and sentence, Muhammad Nasrullah, appellant, has filed the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No.246 of 1999, seeking confirmation or otherwise of death sentence. Both these matters are being decided by this consolidated judgment.

3. The brief facts of the prosecution case per statement of Bakhsha, complainant/P.W.6 (Exh.P.F.), on the basis of which formal F.I.R. Exh.P.F./1 was recorded, are that on 24-9-1996 at 5-30 p.m. Bakhsha complainant, Muhammad All (deceased) and Haji Wajib Ali/P.W.7, while on their way to their Dhari, reached near the graveyard, when all of a sudden Nasrullah, appellant, armed with .12 bore gun, and Muhammad Hanif (acquitted accused) armed with rifle emerged from the graveyard. The appellant, while raising Lalkara that Muhammad All should not go alive, fired at Muhammad Ali, hitting him on his right knee and the pellets went through and through. Muhammad Hanif also remained firing and threatening that whosover, came near would meet the same fate. Muhammad Ali fell on the ground due to the injuries. The accused ran away towards the village. Muhammad All was taken to Civil Hospital, Jaranwala, in injured condition on a Dala, where he died and was brought back to the Dhari. It was further alleged that the offence was committed by the accused at the instance of Muhammad Boota, as a few days prior to the occurrence, Wali Muhammad and Khizar Hayat/ P.W.5 had heard Muhammad Boota advising Nasrullah and Muhammad Hanif to commit the murder of Muhammad Ali. The motive behind the occurrence was that about one year prior to the occurrence, Muhammad Ali deceased and others had caused injuries to the appellant with fire-arm and on account of that grudge, the accused had committed the offence.

4. On 24-9-1996 on receipt of information about the occurrence, Muhammad Hussain, S.-I./P.W.8, went to the place of occurrence and recorded the statement of Bakhsha/complainant Exh.P.F., which was sent to the police station, where formal F.I.R. Exh.P.F./l was recorded by Muhammad Saleem, A.S.-I./P.W.4. After making arrangement of light, on spot inspection, P.W.8/Investigating Officer collected blood-stained earth through memo. Exh.P.H., prepared site plan Exh.P.J., injury statement Exh.P.C. and inquest report Exh.P.D. and sent the dead body for post-mortem examination. On 25-9-1996, the last-worn clothes of the deceased consisting of shirt P.1, Chaddar P.2 and a phail containing Chharra were taken into possession vide memo. Exh.F.E. The appellant was arrested on 15-12-1996 and while in custody on 21-12-1996, he led to the recovery of gun P.3 along with 3 live cartridges P.4/1-3 from his Dhari, which were taken into possession vide memo. Exh. P. G. , attested by Bakhsha/complainant and one Abdul Hameed. Exh.P.G./1 the site plan of the place of recovery of gun was also prepared by the Investigating Officer. After completion of investigation, the appellant along with his co-accused was challaned to face the trial.

5. The prosecution produced nine witnesses in support of its case. Ocular account was furnished by Bakhsha/P.W.6 and Wajib Ali/P.W.7. In additional to that, Bakhsha P.W. also stated about the motive and the recovery of gun at the instance of the appellant. Dr. Muhammad Akram/P.W.2, who conducted the post-mortem examination on the dead body of the deceased, found seven lacerated injuries on his right knee. On dissection, the doctor found wad underneath the big wound/injury No.1. One pellet was found from outer side of the knee. In the opinion of the doctor, the death was due to excessive haemorrhage and shock caused by the aforesaid injuries, which were sufficient to cause death in ordinary course of nature. The injuries were caused by fire-arm weapon. Duration between 'the injuries and death was few hours and between the death and post-mortem examination was 13 hours. He admitted in his cross-examination that according to dimensions of injuries Nos. 1 to 4, the entry wounds, there was no possibility that those were result of different fire shots. He also ruled out the possibility that the injuries were caused from different weapons. Muhammad Hussain, S.-I. /P. W.8, stated about the drafting of the complaint Exh.P.F./l,. sending the same for registration of the formal F.I.R. and the investigation thereafter. The rest of the witnesses were formal in nature and need not be discussed.

6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication in the case due to party faction and enmity. Neither the appellant appeared as his own witness as contemplated by section 340(2), Cr.P.C. nor did he produce any witness in his defence.

7. Learned counsel for the appellant submits that both the eye-witnesses were chance witnesses and had no reason to be present at the spot at the time of occurrence; that they have given an exaggerated statement of the occurrence which is not supported by the medical evidence; that both the eye-witnesses also implicated Muhammad Hanif, who was acquitted by the learned trial Court; that their statements have been partially disbelieved and can only be believed qua the appellant in the presence of some independent reliable evidence which is missing in this case; that according to the P.Ws., the fire was caused from a distance of 35 feet, while a wad was recovered from the wound which shows that the injury was caused from a close range. The learned counsel has added that according to doctor, the probable duration between injury and death was within three hours, while according to P.Ws. Muhammad Ali lost his life within an hour; that it is evident from the record that it was Umra, who had caused injuries to appellant and not Muhammad Ali deceased and, thus, the prosecution could not prove the motive. In the alternate, the learned counsel has submitted that it was not a case of capital punishment, as it is evident from the circumstances of the case that the appellant never intended to take the life of the deceased Muhammad Ali and caused injury on the knee. He never repeated the injury; however, unfortunately, Muhammad Ali lost his life due to excessive bleeding, as he was not taken to the hospital in time. The learned counsel has placed reliance on the case of Muhammad Ali v. Sikandar Hayat and 2 others 1993 SCMR 236.

8. On the other hand, learned counsel for the complainant submits that both the P.Ws. have plausibly explained their presence at the time of occurrence; that it was a daylight occurrence and identification of the appellant was not in question; that the police station was at a distance of seven miles, so it cannot be said that the F.I.R. was lodged after delay. The learned counsel has further argued that the first priority of the witnesses was to save the life of Muhammad Ali, therefore, they firstly took him to the hospital and thereafter reported the matter. The learned counsel has further argued that the medical evidence has supported the case of the prosecution, as according to prosecution case itself, the injury was caused on the right knee. The learned counsel has further submitted that the prosecution has fully proved the motive, as the registration of case at the instance of Muhammad Boota father of the appellant against Muhammad Ali and his brother Umra, wherein the appellant had sustained injuries at the hands of Muhammad Ali and his co-accused, has not been denied. The learned counsel has further submitted that no mitigating circumstances exist in favour of the appellant; and that the acquittal of the rest of the accused would not benefit the appellant in any manner, as, admittedly, one of them has not fired at the deceased, while the allegation against the other was that of conspiracy alone. The learned counsel appearing on behalf of the State has adopted the line of arguments of the learned counsel for the complainant and has supported the judgment passed by the learned trial Court.

9. We have heard the learned counsel for the parties and have also gone through the entire record.

10. The occurrence took place at 5-30 p.m. on 24-9-1996, when the light was available and, thus, there was no question of mistaken identity of the accused. P.W.6, who is Mamoon of the deceased, had no background of enmity or ill-will against the appellant so as to depose A against him falsely. His statement is fully corroborated on all material particulars by Wajib. Ali P.W.7, who, undeniable, is not related to the deceased or the complainant. He is an independent witness with no background of hostility with the appellant. Both these witnesses stood the test of cross-examination and had given confidence inspiring evidence. The argument of the learned counsel for the appellant that eye-witnesses account was not supported by medical evidence is not correct. The learned counsel submitted that according to P.Ws. fire was made from a distance of 35 feet, while according to medical evidence, the injury was caused from a very close range. He has referred to the recovery of wad from the wound, which, according to him, made it clear that the fire was made from a very close range. Perusal of the statement of P.W.2 Dr. Muhammad Akram reveals that none of the injuries caused blackening and tattooing. Thus, it could not be said with certainty that the fire was caused from a very close range on the basis of recovery of wad alone. Even otherwise, the distance between the victim and the place of occurrence can never be given with exactitude, as the victim would always try to save his life and would not remain straight. The fact remains that the deceased lost his life due to fire-arm injury and the witnesses have correctly mentioned the seat of the injury. The prosecution has also successfully proved the motive, as undeniably, a case was registered against the deceased and his brother Umra who had given injuries to the appellant almost a year prior to the occurrence. As regards the acquittal of Muhammad Hanif/co-accused by the learned trial Court, the same would not advance the case of the appellant, as undisputedly Muhammad Hanif, who was shown to be armed with a rifle, did not cause any injury either to the deceased or to any of the P.Ws. and he has been acquitted by the learned trial Court in pursuit of the safe administration of justice. However, as far as the recovery is concerned, it has not been proved to the judicial satisfaction, for the reasons: firstly that it was from an open place; secondly that the weapon recovered was not sent to Forensic Science Laboratory to establish, whether it was in working order or not and thirdly that no empty was recovered from the spot.

11. The upshot of the whole discussion is that we are of the opinion that prosecution has successfully proved its case against the appellant through direct evidence which is supported by medical evidence as well as by the motive.

12. Having come to this conclusion, we have given our anxious and considerate thought to the question of sentence. In our view, following mitigating circumstances are available in favour of the appellant: (A) that the appellant caused a single injury and that too on the knee of the deceased; (B) that there is no evidence on record that the appellant even tried to reload his gun; (C) that admittedly, the deceased was one of the accused in a hurt case registered at the instance of the father of the appellant wherein the appellant had sustained injuries at the hands of the deceased and his co-accused and the appellant felt aggrieved because of release of the deceased on bail in the said case and gave him a single blow to cause hurt. It is also in evidence that the deceased lost his life due to excessive bleeding. In somewhat similar circumstances in Muhammad Ali's case (supra) cited by the learned counsel for the appellant, the. apex Court did not inflict the extreme penalty of death. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. we alter the sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is given to the appellant. The amount of compensation imposed upon the appellant is maintained with slight modification that in default of realization of payment thereof, the appellant would suffer six months' S.I. instead of R.I.

13. With the above modification/reduction in sentence, this appeal is partly allowed. The death sentence is not confirmed. The Murder Reference is answered in the negative. H.B.T./M-165/L????????????????????????????????????????????????????????????????????? Appeal partly allowed.