2016 PLP 1 (YLRN)

SYED SHAHBAZ ALI RIZVI, J.--This judgment shall dispose of Criminal Appeal No.218-J of 2010 titled as Abraham v. The State filed by the appellant against his conviction and sentence along with Murder Reference No.646 of 2010 titled as The State v. Ibraheem alias Abraham alias Haman transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant being originated from the same judgment dated 08.05.2010 passed by the learned Addl. Sessions Judge, Nankana Sahib (camp at district jail Sheikhupura) in case FIR No.25 dated 22.01.2002, offences under sections 302, 148, 149 and 109 P.P.C. registered at Police Station Sadar Nankana District Sheikhupura (now District Nankana Sahib) whereby, the appellant was convicted under Section 302(b) P.P.C. and sentenced to death for committing the murder of Emmanuel Pehlwan (deceased) with direction to pay fine of Rs.1,00,000/- to be paid to the legal heirs of the deceased. In case of non-payment of fine, to undergo simple imprisonment for six months. He was also held liable to pay compensation of Rs.2,00,000/- to the legal heirs of deceased under Section 544-A of the Code of Criminal Procedure, 1898.

2. Brief facts of the case, as disclosed by Naeem alias Mithu, complainant (PW-4) narrated in the statement (Exh-PC) on the basis of which formal FIR (Exh-PC/1) was registered, are that there was an old blood feud between Rofais alias Roopa etc and the complainant. One Rustam C. Qaiser used to help the said accused party. On 22.01.2002 at about 06:15 a.m, he (complainant), his father Emanuel Pehlwan (deceased), his brother Pitras (PW-5) and Asif (given up PW) left their house to go to Sheikhupura to pursue the murder case of his (complainant's) real brother in which Rofais alias Roopa and his brother Abraham alias Haman were proclaimed offenders. In the meantime, Abraham alias Haman (appellant) armed with .222 rifle, Rofais alias Roopa (since P.O.) armed with .222 rifle, Saroon (since P.O.) armed with pump action .12 bore, Amir Sohail armed with a carbine and Shabbir armed with a carbine, from the side of the house of Rustam C. Qaiser, appeared and started indiscriminate firing upon the complainant party and their fires hit Emanuel Pehlwan (the deceased) on different parts of his body who fell down and succumbed the injuries. The complainant and other PWs saved their lives in a panic. The accused persons while murdering Emanuel Pehlwan and making indiscriminate firing fled away. The complainant alleged that this murder was committed on the abetment and instigation of Rustam C. Qaiser.

3. The appellant was arrested in this case on 10.03.2005 by Mushtaq Ahmed, Inspector (PW-1). The appellant, on 20.3.2005, during the custody after making disclosure, got recovered .222 bore rifle (P-1) from his house which was taken into possession vide recovery memo (Ex.PA). After completion of the investigation, report under Section 173 of Code of Criminal Procedure, 1898 was submitted before the learned trial court.

4. Learned trial court, after observing all the pre-trial codal and legal formalities, indicted the appellant to which he pleaded not guilty and claimed to be tried.

5. The prosecution, in order to prove its case, produced as many as twelve witnesses during the trial. Naeem alias Mithu, complainant (PW-4) and Pitras Masih (PW-5) furnished the ocular account of the occurrence. The medical evidence was furnished by Dr. Ijaz Mehmood (PW-10), who conducted the autopsy on the dead body of Emanuel Pehlwan (deceased) on 22.01.2002 at 06:45 p.m. and observed the following injuries:-- "1-A. A firearm wound of entry 0.5 c.m upon the outer lower aspect of left arm. 1-B. A firearm wound of exit 1 cm upon the upper medial aspect of left arm. There was a fracture of left humerus. 2-A. A firearm wound of entry upon the left upper aspect of chest anteriorly 1 cm. 7 cm above the left nipple. 2-B. A firearm wound of exit 1.5 cm on the back of skull 3 cm towards right side of midline. 3-A. A firearm wound of entry 2 x 1 cm on the upper part of neck 2 cm below the chin. 3-B. A firearm wound of exit 3 x 3 cm on the outer aspect of right jaw. 4-A. A firearm wound of entry on the dorsum of left foot 2 x 2 cm. 4-B. A firearm wound of exit 3 x 2 cm on the outer aspect of left foot. There was fracture of 3rd to 5th metatarsals of the foot.

5. A lacerated wound 8 x 9 cm on the front of right leg in the middle. There was fracture of right tibia and fibula.

6. A lacerated wound 3 x 2 cm on the front of right knee. Bone was not exposed." In his opinion, all the injuries were ante mortem. Injuries Nos.2-A and 2-B individually and along with other injuries were enough to cause death in ordinary course of nature through blood loss and shock. Probable time between injuries and death was immediate while time between death and postmortem 10 to 15 hours.

6. Mushtaq Ahmad, Inspector (PW-1) is the Investigation Officer of this case. Muhammad Younas Bukhari, Draftsman (PW-8) prepared the scaled site plan (Ex.PJ) of the place of occurrence. Jafar Hussain HC/779 (PW-12) is the witness of recovery of .222 bore rifle (P-1) at the instance of the appellant, whereas, rest of the prosecution witnesses are formal in nature.

7. The prosecution gave up Muhammad Afzal, Inspector, Danial Masih, Asif Masih and Pitras Masih son of Jan Masih PWs being unnecessary and after tendering into evidence reports of Chemical Examiner (Exh-PM), Serologist (Exh-PN) and that of Forensic Science Laboratory (Exh.PO) closed the prosecution evidence.

8. Statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898 was recorded wherein he negated the allegations levelled against him and professed his innocence. In reply to a question that as to "Why this case against you and why the PWs deposed against you", he replied as under:-- "PWs are relative of the deceased and in the same context they have deposed falsely against me. I have been involved in this case merely in the perspective of party faction and enmity with the complainant party."

9. The appellant neither opted to make statement on oath as his own witness in disproof of the allegations levelled against him as provided under Section 340(2) of the Code of Criminal Procedure, 1898 nor did he produce any evidence in his defence.

10. After conclusion of the trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.

11. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case as there was previous enmity between the parties; that there are discrepancies in the statements of eye-witnesses on material aspects of the case; that allegedly all the accused persons resorted to indiscriminate firing and it cannot be said with certainty that whose fire proved fatal which led to the death of the deceased; that the independent witnesses i.e. Asif Masih, Pitras Masih son of Jan Masih, and Danial Masih were willingly given up by the prosecution to save the prosecution case; that no independent witness has been produced to corroborate the prosecution story as narrated in the FIR despite the fact it was a bazaar; that the eye-witnesses produced by the prosecution are interested and inimical witnesses and their testimony is not in consonance with the story narrated in the FIR as well as with the medical evidence; that there is no independent corroboration to connect the appellant with the offence; that recovery of .222 bore rifle at the instance of appellant was effected after three years of the occurrence; that the alleged abscondance of the appellant is not proved as per law; that the co-accused of the appellant were declared innocent by the police during the investigation. He lastly contends that the appellant may be acquitted of the charge and murder reference may be answered in negative.

12. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and maintains that the presence of eye-witnesses at the place of occurrence at the relevant time stands established; that there is no deliberate or conscious delay in reporting the matter to the police; that mere relationship of the eye-witnesses with the deceased is no ground to discard their testimony if the same inspires confidence; that there are no major contradictions in the statements of the eye-witnesses; that the medical evidence fully corroborates the ocular account; that the motive of the occurrence stands proved against the appellant; that the recovery of .222 bore rifle has satisfactorily been proved at the instance of the appellant; that the long willful and unexplained abscondance of the appellant also reflects his guilty mind; that the prosecution has proved its case against the appellant through confidence inspiring evidence beyond the shadow of reasonable doubt; that conviction and sentence passed by the learned trial court may be maintained, this appeal may be dismissed and the Murder Reference be answered in the affirmative.

13. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General assisted by the learned counsel for the complainant, learned counsel for the legal heirs of the deceased and also scanned the record with their able assistance.

14. We have noticed that the occurrence of this case took place at 06:15 a.m, the matter was reported to the police at 06:55 a.m. i.e. within forty minutes of the occurrence and the FIR was registered at 07:30 a.m. while the distance between the place of occurrence and police station, as mentioned in relevant column of the FIR is nine miles. Considering the circumstances of the case, we are of the view that the crime report of the fateful incident was registered promptly that confirms at least the presence of the witnesses at the scene of occurrence.

15. To substantiate its case, through the direct evidence, the prosecution has produced Naeem alias Mithu, complainant (PW-4) and Pitras Masih (PW-5) to furnish the ocular account of the incident. Both these witnesses being real brothers and residents of the locality are natural witnesses as according to their version, they along with their father Emmanuel Pehlwan (deceased) left the house to attend the Court at District Sheikhupura, which is probable and natural in the cultural background of the area. The time, place and manner of the occurrence has not been denied by the defence during the cross-examination of both the eye-witnesses. Even otherwise, they remained consistent and firm qua the mode of occurrence and role of the appellant in perpetrating the alleged offence. Despite having gone through the test of cross-examination, both witnesses remained confident and the defence could not derive anything beneficial to the appellant. The statements given by the eye-witnesses are straightforward, coherent and trustworthy. Both, Naeem alias Mithu (PW-4) and Pitras Masih (PW-5) have not materially deviated from their stance promptly recorded by the police under sections 154 and 161, Cr.P.C, respectively, soon after the fateful incident and some simple improvements are only of explanatory nature, not of the kind that could change the complexion of the actual incident. In view of the fact of previous acquaintance of the parties with each other and being resident of same locality, there is no question of misidentification of the appellant. Mere relationship of the deceased with the witnesses is not sufficient to discredit their testimony that is otherwise cogent and confidence inspiring. In this respect we respectfully refer the case of Ijaz Ahmad v. The State (2009 SCMR 99) wherein the Hon'ble Supreme Court was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him." Same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Haji v. The State (2010 SCMR 650) wherein the Hon'ble Supreme Court has observed as under:- "Both the ocular witnesses undoubtedly are inter se related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident" So, in view of our above observations, we are of the opinion that the ocular account furnished by the prosecution to prove its case against the appellant is confidence inspiring and trustworthy. So far as, the contention raised by the learned counsel for the appellant that no person from 'bazaar' came forward to become a witness to support the prosecution, is concerned we have observed that Pitras Masih (PW-5) during his cross-examination has given a convincing and cogent justification in this regard that due to fear, no one joined as prosecution witness. Even the Hon'ble Apex Court has recognized this social phenomenon prevailing in our society and in case titled Muhammad Ahmad and another v. The State (1997 SCMR 89), Afzaal Ahmed v. The State (2003 SCMR 573) and Roohul Amin and another v. The State and others (2014 SCMR 348). In the case of Muhammad Ahmed supra, the Hon'ble Supreme Court was pleased to observe as under:-- "18. ...Nothing turns on these objections as it is a matter of common knowledge that the people from the locality generally hesitate to come forward as witnesses in such cases for fear of reprisals from the accused party. This tendency, though unfortunate, has been taken note of in a number of cases and condoned in view of the peculiar conditions prevailing in the country. Reference may pertinently be made to the following observations in the case of Ghulam Mohayuddin alias Muhammad Panah v. The State (1976 PCr.LJ 311): "It is now well-known that, generally, people in our country hesitate to come forward as witnesses and give evidence in such cases, because they do not wish to get themselves involved in other people problems. Probably there is good reason for their hesitation because by appearing as witnesses in criminal cases one is likely to incur the wrath and attract the enmity of the accused persons and their partymen. We have come across a large number of cases where people were murdered simply because they had dared to appear as witnesses in such cases. What is still more disheartening is that the law-enforcing agencies in the country hardly afford any protection to those who have the requisite public spirit and are willing to come forward and testify against criminals and thus incur their hostility. We have also noticed, in a large number of cases, that whenever the FIR contains the name of some independent' or 'unrelated' persons as eye-witnesses of the occurrence, along with some relatives of the deceased, who saw the occurrence, the former usually resile from their statements or, at least, tend to make concessions in favour of the accused and have quite often to be declared 'hostile'. The cause for this appears to be the same as mentioned above, namely, that 'independent' or 'unconnected' witnesses see no reason to endanger their lives for what they consider to be `none of their business' and in many cases such witnesses are proved to be won-over by inducements or to resile under threats.

Once it is recognized that such conditions are prevailing in the country and that some pressure, by way of inducement or threat, has been put on some prosecution witnesses, it cannot be said that an adverse presumption must necessarily arise against the prosecution of not having produced nearby shop-keepers or the residents of the Mohallah and if the Court finds that some "related witnesses", who are also said to have witnessed the occurrence, have withstood the test of cross-examination and their testimony is corroborated by reliable circumstantial evidence, then it (i.e. the Court), should not hesitate to believe them and rely upon their testimony." Having guidance from the above referred judgments, we are of the view that non-appearance of independent persons from the `bazaar' is not sufficient to challenge the credibility of the testimony of Naeem alias Mithu (PW-4) and Pitras Masih (PW-5). Both the eye-witnesses during the cross-examination remained consistent with each other qua the actual occurrence narrated by them. The defence could not point out any material or noticeable discrepancy sufficient to create any doubt regarding the probity of the ocular account that is fully corroborated by the medical evidence furnished by Dr. Ijaz Mehmood (PW-10) who has opined that unnatural death of the deceased Emmanuel Pehlwan was caused due to shock and blood loss as a result of injuries caused by firearm.

16. The ocular account furnished by the prosecution fully corroborated by the medical evidence is further supported by the evidence of more than three years long willful and noticeable abscondance of the appellant which reflects his guilty mind. In this regard, reference is made to the case of Haroon Rasheed and 6 others v. State and another (2005 SCMR 1568).

17. The prosecution has set up a motive that both the parties are having long standing enmity of murders and when the complainant appeared as PW-4 he in his examination in chief has specifically alleged that they were going to the District Courts to pursue the murder case in which the appellant was one of the accused persons. The defence has not seriously challenged the same during the cross-examination. Even no suggestion has been put to the witness to rebut this motive part of the occurrence which amounts to admission by the defence. Moreover, Ibraheem alias Abraham (appellant) in his statement recorded under section 342 Cr.P.C. has admitted the enmity though, proffering the same as a reason for false implication but the stance taken by him qua his false implication could not be substantiated by him through any evidence. The circumstances of this case have led us to believe the motive part of the occurrence alleged by the prosecution.

18. So far as the alleged recovery of .222 bore rifle (P-1) at the instance of appellant is concerned, we have noticed that five empties of .222 bore rifle were taken into possession by the police from the spot but the same were not sent to the Forensic Science Laboratory for comparison. The appellant was arrested in this case on 10.03.2005, i.e, three years after the occurrence and on 20.03.2005 got recovered the crime weapon .222 bore rifle from his house, which was taken into possession by the Investigation Officer vide recovery memo Ex.PA and sent to Forensic Science Laboratory on 08.04.2005. The report of said Laboratory (Ex.PO) is only to the extent of its being in working order. Thus we are of the view that the alleged recovery of .222 bore rifle at the instance of appellant is inconsequential and renders no help to the prosecution.

19. In the light of above discussion, having guidance from the esteemed judgment passed by Hon'ble Supreme Court of Pakistan in cases titled Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872) even if the evidence of recovery is kept out of consideration, we have observed that prosecution has successfully proved its case through confidence inspiring ocular account furnished by Naeem alias Mithu, complainant (PW-4) and Pitras Masih (PW-5) which is corroborated by the medical evidence, evidence of motive, willful and noticeable abscondance of the appellant and the result of investigation. Thus, we have come to an irresistible conclusion that the learned trial court has rightly convicted the appellant Abraham through the impugned judgment, however, to the extent of quantum of sentence awarded to the appellant, we have noticed mitigating circumstances in his favour. Firstly, we have declared the recovery of .222 bore rifle as inconsequential for the reasons given in paragraph No.18 and secondly, we have noticed that no specific injury is attributed to any of the accused persons in complaint (Exh-PC) by the complainant Naeem alias Mithu (PW-4) and similar is the position in his statement before the learned trial court as well as the statement of Pitras Masih (PW-5) and the injuries available on the deceased have been attributed to six accused persons including the appellant and in our view, injuries Nos.1-A, 4-A, 5 and 6 reflected in post mortem report of Emmanuel Pehlwan (Exh-PL) are on the left arm, left foot, right shin and right knee, respectively which, individually are not fatal being on non-vital parts of the body. In this view of the matter as it cannot be ascertained that who caused the fatal injuries to the deceased, we feel that this uncertainty constitutes a mitigating circumstance regarding the quantum of sentence. For supra extenuating reasons, we are of the opinion that alternative sentence of imprisonment for life, a legal sentence under Section 302(b), P.P.C., to Ibraheem alias Abraham alias Haman (appellant) shall meet the ends of justice. In this regard, we are fortified by an esteemed judgment of the Hon'ble Supreme Court of Pakistan passed in the case titled Israr Ali v. The State (2007 SCMR 525) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "5. .. this brings us to the question of sentence more particularly that appellant/convict to whom death has been awarded, since in criminal cases, the question of sentence demands the utmost hear on the part of the Court dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence... 6. . . . . . . . . . . . . . . . . . . . . . . . 7. . . . . . . . . . . . . . . . . . . . . . . .

8. It is pertinent to mention here that this provision does not spell out the circumstances in which either of the two punishments is to be awarded and as such it has been left for the superior Courts to lay down guidelines for awarding either of the punishment. Unamended section 302, P.P.C. shows that a Judge is not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required to give reasons for it as law laid down by this Court in Piran Ditta s case PLD 1976 SC

300. Now after the said amendment in section 302, P.P.C. will be little different as a Judge while awarding either of the two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons. The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced an enforced through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) promulgated from time to time since 1990 in view of section 338-F of P.P.C. as in Islam except for just cause and reason, a life cannot be taken away or in other words put to an end." Likewise, in a recent case titled Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034), the Hon'ble Supreme Court of Pakistan has held that if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence.

20. In the light of above discussion, the conviction of Ibraheem alias Abraham alias Haman (appellant) under Section 302(b) P.P.C. awarded to him by the learned trial court is maintained, however, his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon him and imprisonment in default thereof is also maintained. He is, however, awarded the benefit of Section 382-B of the Code of Criminal Procedure.

21. Consequently with the above modification in the quantum of sentence of Ibraheem alias Abraham alias Haman (appellant), Criminal Appeal No.218-J of 2010 is hereby dismissed.

22. Murder Reference No.646 of 2010 is answered in the NEGATIVE and the sentence of death of Ibraheem alias Abraham alias Haman (convict) is NOT CONFIRMED. HBT/A-26/L Sentence reduced.