2006 PLP 2652 (YLR)

MIAN MUHAMMAD NAJUM UZ-ZAMAN, J.

Appellant Muhammad Ashraf son of Haqdad Khan was tried for the murder of one Shafi Ullah in case F.I.R. No.57 dated 7-5-1999 registered under section 302, P.P.C. at Police Station Kamarmushani, District Mianwali by the Additional Sessions Judge, Mianwali who vide judgment dated 1-7-2000 convicted the appellant under section 302(a), P.P.C. and sentenced him to death as Qisas. The appellant was also directed to pay a fine of Rs.50, 000 (Fifty thousand only as compensation under section 544-A, Cr.P.C.). In default of payment of fine to suffer six months' S.I. and that the fine if recovered was ordered to be paid to the legal heirs of the deceased.

2. Calling in question the impugned judgment appellant filed Criminal Appeal No.976 of 2000 while complainant has filed Criminal Revision No.474 of 2000 seeking enhancement of amount of compensation. Trial Court has also made a reference (Murder Reference No.474 of 2000) seeking confirmation of death sentence awarded to the appellant. All these matters are being disposed of together by this judgment.

3. Succinctly the prosecution case as narrated in F.I.R. Exh. PL lodged on the statement of Mani Khan son of Nasrullah Khan P.W.9 is that on 5-5-1999 he along with Shafiullah deceased and Matiullah P.W.10 was proceeding towards the Dera of his uncle Sher Zaman. Al about 6-15 p.m. when he passed near the Mosque of Burzi situated near road side, all of a sudden Muhammad Ashraf appellant armed with .12-bore pistol emerged there and inflicted fire-shot hitting Shafiullah on the back who fell down. The appellant brandishing the pistol in the air and raising Lalkara that he had avenged the insult, fled away from spot. The occurrence was also witnessed by Matiullah and the complainant himself. The injured was removed to the hospital.

4. Upon the registration of case the Investigating Agency inquired into the matter and after complying with legal formalities, submitted challan before the trial Court where prosecution produced thirteen witnesses, including Mani Khan P.W.9 and Matiullah P.W.10, the eye-witnesses of the occurrence, to prove the charge against the appellant. During the investigation after the permission of doctor, when the deceased was still alive, Changaiz Khan Magistrate (P.W.12) recorded the statement of Shafiullah Exh.PH/1. This statement reveals that the deceased had seen a person known as Ashraf running away from the spot while raising Lalkara that he had taken the revenge for the insult. The Investigating Officer also recorded the statement of the deceased under section 161, Cr.P.C. i.e. Exh.PR.

5. Trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question, why this case against you and why the P. Ws. have deposed against you? the appellant replied as under:-- "As mentioned above in Question No.2 the case has been fabricated against me on account of above mentioned detailed reasons given by me in reply to Question No.2. The P.Ws. are interested as the land in dispute was jointly owned by the relatives, father and the uncle of the deceased. Therefore, they have falsely implicated me in this case on account of animus." Appellant did not make any statement under section 340(2), Cr.P.C. however, produced in evidence copy of school leaving certificate Exh.DB, attested coy of Nikahnama Exh.DC and copy of Jamabandi Exh.DD and closed his defence.

6. Learned trial Court after appraisal of evidence available on record vide judgment dated 1-7-2000 convicted and sentenced the appellant as narrated earlier.

7. Learned counsel for the appellant at the very outset did not press this appeal to the extent of conviction of the appellant but prayed for the lesser sentence on the ground that Shafiullah deceased died after more than two months of the occurrence and in the light of medical evidence the possibility that deceased might had died due to the negligence of the doctors could not be ruled out. Conversely, learned counsel for the State as well as the complainant while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellant.

8. It is a case of single accused and normally in such-like cases substitution by the kith and kin of the deceased by leaving the real culprit is a rare phenomenon. Appellant had committed the cold-blooded murder of Shafiullah (deceased) during the daylight hours on 5-5-1999 at about 6-15 p.m. within the view of Mani Khan P.W.9, Matiullah P.W. 10 and other given up eye-witnesses. Both the said witnesses while deposing before the trial Court had painted a bright and vivid picture of the entire occurrence, stating therein that it was the appellant who had caused fire-arm injury to Shafiullah as a result of which he died later on. During the investigation after obtaining permission Exh.PB/1 from Dr. Zaheer-ud- Din, Changaiz Khan Magistrate P.W.12 recorded the statement of Shafiullah deceased on 8-7-1999. This statement also A supports and corroborates the ocular account. We have observed that during the cross-examination though attempts were made by the defence to shatter the credibility of the said eye-witnesses but they remained steadfast and there is nothing in their statements to doubt their credibility or to say that they had not seen the occurrence. The evidence of the eye-witnesses inspire-confidence, rings true and is persuasive in nature.

9. The ocular account also finds support from the medical evidence. The duration, location and nature of injuries as narrated by the eye-witnesses stands affirmed by this piece of evidence. The B recovery of weapons also stands established from the record and this piece of evident is yet another factor to strengthen the prosecution case. The crux of the above discussion is that prosecution has proved its case to the hilt against the appellant.

10. As far the quantum of sentence of the appellant is concerned, record of this case reveals that Shafiullah had died after more than two months of the occurrence and during this period he remained under treatment of different doctors. According to Dr. Abdul Sattar P.W.3 the cause of death of Shafiullah was the "long-standing illness resulting in SEPSIS and causing complications to the normal functioning of the various systems of the body. Sepsis resulted in septic shock. Failure of multi-organs system and death." According to doctor Abdul Sattar P.W.3 "the death certificate showed that deceased died due to car dial pulmonary arrest due to multi-organs system failure and death by a fire-arms as furnished by the police although there is no mention of the death by fire-arm in the death certificate". In the light of these facts it can be said that the death of Shafiullah deceased was not the direct result of the fire-arm injury and the possibility of doctors' negligence during the D treatment cannot be ruled out, thus in our view it is not a fit case for the award of a maximum sentence of death to the appellant. We have observed that record of this case is absolutely silent about the compliance of section 304, P.P.C. and thus the trial Court has erroneously convicted the appellant; under section 302(a), P.P.C. as Qisas,. Trial Court has also erred while awarding sentence of fine to the appellant for the charge under section 302, P.P.C. and to this extent the impugned judgment is not correct. In the light of the above discussion the appellant stands convicted under section 302(b), P.P.C. as Tazir and he is E sentenced to imprisonment for life with the benefit of section 382-B, Cr.P.C. Appellant shall also pay Rs.50, 000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. or in default whereof to undergo six months' S.I. With this modification in the impugned judgment, the instant appeal otherwise stands dismissed. The counsel for the complainant has failed to show any circumstances/ material to say that appellant is a man of means and can pay compensation more than 50,000 as fixed by us. This criminal revision (Crl. Rev. 474 of 2000) having no merits also stands dismissed. Death sentence is not confirmed and the murder reference is answered in the negative. N.H.Q/M-1334/L Sentence reduced.