2019 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Abdul Rehman alias Manni son of Ghulam Mustafa, caste Ansari, resident of Mohalla Faisal Colony Pasrur City, District Sialkot (appellant) along with Muhammad Usman alias Chhana (since acquitted) and Sohaib alias Sohaibi (since P.O. arrested subsequently) was involved in case FIR No.251/2014, dated 25.07.2014, offence under sections 302, 34, P.P.C., registered with Police Station City Pasrur. The local police carried out investigation in which Usman alias Chhana, accused was found innocent. The challan of the case was submitted before the court of competent jurisdiction, however, the complainant being aggrieved preferred to file private complaint titled as:- "Muhammad Waqas v. Abdul Rehman alias Manni, etc." under section 302/34, P.P.C. During the course of trial, cursory statements of the prosecution witnesses were recorded by the learned trial court and after taking into consideration the material available on record, learned trial court summoned the respondents of the aforesaid complaint to face charge. After recording of evidence and taking into consideration the material available on record, learned trial court vide judgment dated 27.02.2016 convicted/sentenced the appellant in the following terms:- > Under section 302(b), P.P.C., sentenced to death as Ta'zir with direction to pay Rs.1,00,000/- as compensation to legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months.

2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing Criminal Appeal No.496/2016 while learned trial court forwarded Murder Reference No.169/2016 for confirmation or otherwise of sentence of death inflicted upon the convict in terms of section 374, Cr.P.C. The complainant filed P.S.L.A. No.201/2016 against acquittal of Muhammad Usman alias Chhana/respondent. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.

3. Prosecution story as portrayed in the crime report (Exh.PD) lodged on the written application (Exh.PA) of Muhammad Waqas son of Muhammad Arshad, caste Rehmani (PW-1) is that the complainant is resident of Mohalla Faisal Colony, Pasrur and a student of 12th class. On 25.07.2014 at about 6:00 p.m. the complainant along with his bhateja Asad aged about 6 years was at the rooftop of the house while in the courtyard Muhammad Arshad (father of the complainant), Ali Hussain (mamoon of the complainant) and other family members were present. All of sudden the complainant on hearing the report of fire shot saw over the parda of the rooftop while his bhateja also followed him. In the adjacent vacant plot accused (1) Abdul Rehman alias Manni son of Ghulam Mustafa, caste Ansari, armed with pistol .30-bore, (2) Sohaib alias Sohaibi son of Ansar Khan, caste Pathan, resident of Mohalla Faisal Colony, Pasrur, (3) Muhammad Usman alias Chhana son of Rafaqat Ali, caste Faqir, resident of Mohalla Faisal Colony, Pasrur were standing. On seeing the complainant, Muhammad Usman alias Chhana raised lalkara to commit his murder on which Abdul Rehman alias Manni made a fire shot with his pistol .30-bore, however, the complainant hid himself. The accused made second fire shot, which hit at the forehead of Asad, who after sustaining injury fell down. On the hue and cry raised by the complainant, Muhammad Arshad father of the complainant and Ali Hussain, mamoon of the complainant attracted to the spot and witnessed the occurrence, however, accused persons fled away from the scene of occurrence. The injured was evacuated to Civil Hospital, Pasrur from where he was referred to Civil Hospital, Sialkot and thereafter to General Hospital where he succumbed to the injuries. Motive behind the occurrence as disclosed in the crime report was that few days prior to the occurrence hot words were exchanged between the complainant and the appellant and due to this grudge all the accused in connivance with each other had committed the occurrence.

4. On 26.07.2014 on receipt of information regarding the occurrence Gulzar Ahmed, S.I. (CW-3) reached hospital where the complainant presented his written application (Exh.PA) and after endorsing police karvai the same was dispatched to the Police Station on the basis of which formal FIR was chalked out. Thereafter, Investigating Officer prepared inquest report (Exh.CW-3/6), drafted application for postmortem examination (Exh.CW-3/1) and dispatched the dead body to mortuary under the escort of Maqsood Ahmed C/562 (CW-1). From the spot Investigating Officer secured blood stained earth vide recovery memo Exh.PC and prepared rough site plan of the place of occurrence (Exh.CW-3/3). After postmortem examination last worn clothes of the deceased shalwar (P-1), qameez (P-2) along with a phial (P-3) were produced before the Investigating Officer, which were taken into possession vide recovery memo Exh.PD. Upon the direction of Investigating Officer and pointing out of PWs, on 28.07.2014, Raja Kashif, Draftsman prepared rough site plan of the place of occurrence (Exh.CW-3/5 and Exh.CW-3/5/1), which was made part of the file. On 05.08.2014 Investigating Officer arrested the appellant and obtained his physical remand. During the course of interrogation in pursuance of disclosure on 17.08.2014, appellant led to the recovery of pistol (P-4) along with two live bullets, which was taken into possession vide recovery memo Exh.CW-3/7)

5. As a result of investigation, the appellant was found guilty, hence Investigating Officer prepared report under section 173, Cr.P.C. while placing his name in column No.3, and sent the same to the court of Sessions en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. However, the complainant preferred to file private complaint. The accused were summoned and thereafter on 15.08.2015 charge was framed to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as two (2) prosecution witnesses while seven court witnesses also made their statements.

6. Occular account in this case consists of the statements of Muhammad Waqas (PW-1) and Ali Hussain (PW-2). On presentation of complaint Muzammil Hussain, ASI (CW-2) had chalked out formal FIR while Maqsood Ahmed C/562 (CW-1) had escorted dead body to mortuary. Investigation in this case was carried out by Gulzar Ahmed, S.I. (CW-3) and Muhammad Arif, S.I. (CW-7). Dr. Nayyar Rasheed Khan (CW-6) had conducted postmortem examination on the dead body of the deceased and observed following injury on his person:- "1) A firearm lacerated wound of inlet 3.5 x 1.0 cm x going deep. Pear shape with no blackening and burning on front of head left side about 8 cm above from left eye-brow and 10 cm above from left ear." After conducting postmortem examination, doctor rendered the following opinion:- "All the injuries were ante mortem and caused by firearms weapon. Vital organs injury i.e. brain was damaged and skull damaged resulted in excessive haemorrhage leading to hypovoleumic shock causing respiratory and cardiac arrest, ultimately leading to death. This type of injury i.e. injury No.1 can cause death in ordinary course of nature. The probable time between injury and death was about 6 to 8 hours and between death and post mortem was about 10 to 14 hours." Statements of rest of the prosecution witnesses are formal in nature.

7. The appellant was examined under section 342, Cr.P.C., wherein he refuted the allegations levelled against him in the prosecution evidence. He opted neither to appear as his own witness in terms of section 340(2), Cr.P.C. nor did he opt to adduce evidence in his defence.

8. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant, which resulted into his conviction in the afore-stated terms.

9. Learned counsel for the appellant while advancing his arguments contended that impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Learned counsel vehemently argued that the occurrence had taken place on 25.07.2014 at 6:00 p.m. while the same was reported to the police with a delay of eight hours and forty five minutes on the following day at 2:45 a.m. whereas inter-se distance between the place of occurrence and the Police Station is just one furlong. It was argued that story advanced in the crime report does not appeal to reason while presence of the prosecution witnesses at the place of occurrence at the relevant time is highly doubtful. Main crux of arguments of learned counsel for the appellant is that as a matter of fact the occurrence was result of an accidental fire shot, which fact was also found correct during the course of investigation. Moreover, the doctor while appearing in the witness-box admitted this fact that the bullet recovered from the dead body of the deceased was deformed/de-shaped. It was argued that even the complainant while making his statement during the course of trial admitted that father of the appellant remained with the complainant party when he was shifted to different hospitals for treatment. Learned counsel contended that there is no evidence whatsoever regarding the motive. Learned counsel for the appellant while concluding his arguments submitted that keeping in view the facts and circumstances if the prosecution version is taken as correct at the most it attracts the provisions of section 322, P.P.C., hence conviction and sentence passed by the learned trial court under section 302(b), P.P.C., is not sustainable in the eyes of law.

10. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. Learned counsel for the complainant submitted that soon after the occurrence Asad was firstly evacuated to Civil Hospital, Pasrur from where he was referred to Civil Hospital, Sialkot and thereafter to General Hospital, Lahore, therefore, delay in lodging the FIR is not fatal in this case. It was argued that the appellant has been assigned the role of making fire shot at the forehead of the deceased and the prosecution witnesses of occular account viz. Muhammad Waqas complainant (PW-1) and Ali Hussain (PW-2) fully established the prosecution case by giving minute details. Next submitted that occular account is corroborated by the medical evidence. It was argued that during the course of investigation pistol was recovered on the pointing out of the appellant, who was also found guilty and as such his name was placed in column No.3 of the report prepared under section 173, Cr.P.C. Learned counsel for the complainant vigorously argued that the appellant had taken the life of an innocent minor bhateja of the complainant while the prosecution witnesses being closely related to the deceased had no ill-will to falsely involve him in the instant occurrence. It was finally argued that keeping in view evidence brought forth on record, the learned trial court was rightly justified in recording conviction and sentence against the appellant.

11. While arguing PSLA No.201/2016, learned counsel for the petitioner/complainant submitted that Muhammad Usman alias Chhana/respondent is also named in the crime report and on his raising lalkara the occurrence was committed. Further submitted that the prosecution through adducing cogent and confidence inspiring evidence established its case against respondent No.1, therefore, the learned trial court fell in error while acquitting him of the charge.

12. Arguments advanced from both sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.

13. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. In the instant case the occurrence is stated to have taken place on 25.07.2014 at 6:00 p.m. just one furlong away from Police Station City Pasrur, District Sialkot. As far as the place of occurrence, time of occurrence and presence of both sides is concerned, that has not been denied. However the only question, which requires determination by this Court, is mode and manner of occurrence as on this aspect stance of both the parties is contrary to each other.

14. There is no denial to this fact that Asad bhateja of the complainant was fired at when he was at the rooftop of his house whereas the fire shot was made from a nearby vacant plot. The prosecution version as portrayed in the crime report is that the complainant along with his bhateja was present at the rooftop when on hearing the report of fire shot both of them saw from the parda of the rooftop towards the place from where the firing was made and on seeing them in pursuance of lalkara the appellant made fire shot on the complainant, who saved himself whereas second fire shot made by the appellant hit at the forehead of Asad, which subsequently proved fatal. The defence version on this aspect is that as a matter of fact it was an accidental fire shot, which after hitting a hard surface diverted and resulted into injury on the person of Asad (deceased). Thus we have two versions before us: one brought forth on record by the prosecution while the other adopted by the appellant, therefore, we would like to evaluate both the versions by putting it in juxtaposition in the light of evidence brought forth on the record.

15. As far as occular account in this case is concerned that has been advanced through the statement of Muhammad Waqas (PW-1), who happens to be chacha of the deceased and as per his claim the appellant had made fire shot while aiming at him, however, he hid himself. Statement of the complainant has been supported by Ali Hussain (PW-2), who happens to be mamoon of the complainant. An important aspect of the case is that the occurrence had taken place just a furlong away from the Police Station City Pasrur while according to prosecution version besides PW-1 and PW-2, father of the complainant along with other family members were also present in their house. However, astonishingly the matter was not reported to the police promptly by any of the family members rather the delay in lodging the FIR is spread over eight hours and forty five minutes. Although claim of both the prosecution witnesses of the occular account is that the appellant while armed with pistol along with his accomplice had reached there and in pursuance of lalkara raised by his co-accused, the appellant made successive fire shots out of which one fire shot hit Asad (minor). The defence version is that the appellant was present in a vacant/barren plot, who did not make fire shot while aiming any person rather one of the aerial fire shot made by him after hitting a hard surface of the wall diverted and resulted into injury at the forehead of Asad. During the course of investigation carried out by Gulzar Ahmed, S.I. (CW-3), the plea advanced by the appellant was found correct and while making his statement during the course of trial, Investigating Officer/CW-3 admitted this fact in the following terms:- "It is correct that it was my findings of the investigation that it was an accidental occurrence without any intention of pre-meditation of the accused." Moreover, on the application of the complainant party the investigation was changed and entrusted to Muhammad Arif, S.I. (CW-7), who also opined that the occurrence was result of inadvertent aerial firing. Relevant extract out of statement of CW-7 is reproduced as under:- "During my investigation it was found that the alleged occurrence took place inadvertently as the accused Abdur Rehman alias Manni was making an aerial firing and one of the fire shot hit Asad deceased." Besides the findings given during the course of successive investigations it has come on record that soon after the occurrence father of the appellant had accompanied the complainant party while shifting Asad to hospital for his medical treatment. This fact was also admitted by the complainant while making his statement during the course of trial in the following terms:- "The father of accused Abdur Rehman was also present at that time when we shifted the injured to the hospital. He had also gone with us to the hospital Sialkot." If the story advanced by the prosecution in the crime report and substantiated through the statements of the prosecution witnesses of occular account qua the mode and manner of occurrence is taken as correct, had it been so that the appellant in pursuance of lalkara had made fire shot while aiming at the complainant and second fire shot hit Asad (deceased), there was hardly any possibility that father of the appellant ought to have accompanied the complainant party to the hospital or the other party should have allowed him to accompany them. Although the presence of both the prosecution witnesses of occular account at the place of occurrence at the relevant time could not be shattered during the course of trial nor it could be denied that the injury on the person of deceased was result of fire shot made by the appellant, however, when above stated facts and circumstances are scrutinized with care and caution one thing is clear that they being close relatives inter-se, as well as, the deceased have advanced an exaggerated story qua the mode and manner of occurrence.

16. As far as medical evidence in this case is concerned Dr. Nayyar Rasheed Khan (CW-6) had conducted postmortem examination over the dead body of deceased, who had supplemented the stamp of injury at the person of deceased. However, perusal of statement of the doctor reflects that while conducting postmortem examination, he had recovered foreign body (bullet), which was found de-shaped/deformed. During the course of cross-examination the doctor also admitted the bullet becomes deformed if it hits harder place than itself. This fact further leads to the conclusion that the fire shot on the person of deceased did not hit him directly rather it diverted to him after hitting some harder place.

17. Although in the crime report it was alleged by the prosecution that some days prior to the occurrence a quarrel had taken place between the appellant and the complainant, which resulted into the instant occurrence, however, no evidence whatsoever was adduced either during the course of investigation or during the course of trial to substantiate the same. So much so the complainant while making his statement admitted that there was no witness of the motive part of the case. This fact also rules out the possibility that the occurrence was result of any pre-meditation.

18. During the course of investigation the appellant led to the recovery of pistol, however, as no crime empty was collected from the place of occurrence, therefore, no question of matching report of Punjab Forensic Science Agency arises.

19. While scanning the whole material available on record with regard to version advanced by the prosecution vis- -vis the stance taken by the appellant in his defence plea and evluating it on the touchstone of other attending facts and circumstances we have arrived at the conclusion that the version narrated by the prosecution witnesses is not the gospel truth while plea advanced by the appellant, which lends support from the successive investigations and the statement of the doctor is more plausible, therefore, we have been persuaded to accept the same.

20. Having arrived at this conclusion now question arises that from the facts and circumstances of the case what offence has been made out as a result of act of the appellant. There is no denial to this fact that the appellant did not intend to commit murder of Asad deceased rather as opined during the course of successive investigations the same was result of aerial firing coupled with the statement of the doctor that the bullet recovered from the dead body was de-shaped, we are of the considered view that the unlawful act committed by the appellant, which resulted into death of Asad, in our humble view, falls within the ambit of Qatl-bis-Sabab as enshrined in section 321, P.P.C., punishable under section 322, P.P.C., which reads as under:- "

321. Qatl-bis-Sabab. Whoever, without any intention to cause death of, or cause harm to a person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab."

21. Consequently, the conviction and sentence of the appellant recorded under section 302(b), P.P.C., is set aside and the appellant is hereby convicted under section 322, P.P.C., and sentenced to pay diyat. As the occurrence was committed in the year 2014, therefore, the appellant is burdened to pay Rs.21,74,577/- as diyat amount according to prevailing rate at that time. Till payment of diyat amount, he would be treated as undergoing simple imprisonment. With the above modification in his conviction and sentence, Crl. Appeal No.496/2016 filed by the appellant is dismissed.

22. Murder Reference No.169/2016 is answered in negative. Death sentence is not confirmed.

23. As far as P.S.L.A. No.201/2016 filed against acquittal of Muhammad Usman alias Channa/respondent is concerned, although he has been named in the crime report, however, during the course of successive investigations he was found innocent. Moreover, his presence could not be established at the spot. Hence, keeping in view the facts and circumstances we have not been persuaded to take a contrary view to that already taken by the learned trial court to his extent. Consequently P.S.L.A. No. 201/2016 is dismissed as a result whereof leave to appeal is refused. JK/A-7/L Order accordingly.