2018 PLP 61 (YLRN)

OAZI MUHAMMAD AMIN AHMED, J.

Muhammad Aslant, 45, hereinafter referred to as the deceased, was shot dead on 20-05-2008 at 8:00 p.m. within the area of Mouza Shah Muhammac. Janoobi, situating at a distance of 3-miles from Police Station Qureshi, District Muzaffargarh; incident was reported by his brother Muhammad Anwar (PW-2) through complaint Ex.PB recorded by Muhammad Ghaffar, SI (PW-8), 8:30 p.m at R.H.C. Basira. According to the complainant, the deceased, an ex-army personnel, served as Naib Qasid in Union Council Mehmood Kot, after his duty hours, he worked as a gunman at a gasoline outlet; on the eventful day at about 8:00 p.m, on a motorbike, he was on way to attend his evening assignment when near Bahawal Nala Pul Lorr he was confronted by two assailants armed with a 30-caliber pistol and a short gun, respective; as the deceased raised alarm as well as-resistance, the PWs were attracted to the scene and saw in the light, of motorbike heat. lamp, the appellant hitting the deceased with a gun shot landing on his abdomen followed by a pistol shot by Sajjad Hussain hitting the deceased beneath right armpit; the PWs headed to intercept the assailants, however, were kept at bay on gunpoint; it is claimed that assailants were previously known to the witnesses; the appellant being a neighbour and Sajjad Hussain having been married in the same neighbourhood; the deceased succumbed to his injuries on way while he was being shifted to the hospital. Robbery was the intended purpose and resistance by the deceased cost him his life. Dr. Ameer Bukhsh (PW-5) conducted autopsy same night at 11:30 p.m. and observed as many as four injuries that included two entry wounds of different dimensions on left upper abdomen and right upper lateral chest with tattooing and blackening alongside an exit on middle of left lateral chest; a cut wound on occipital region of head was also observed; injuries ruptured the stomach, small and large intestines, spleen and its major vessels; a plastic shell was recovered from abdominal cavity; hemorrhagic shock was blamed as cause of death; injury No.1 was caused by sharp edged weapon while all the injuries were found collectively sufficient to cause death in the ordinary course of nature; duration between injuries and death was immediate whereas between death and postmortem it was reckoned as approximately within 3 hours. Muhammad Ghaffar, SI (PW-.8) carried out initial investigation; during spot inspection, he secured bloodstained earth, motorcycle (P-1), two casings of 12 caliber and those of 30-claiber vide memo Exs.PC, PD, PE and PF respectively. Sabir Hussain and Sajjad Hussain appellants were arrested on 3.6.2008 and pursuant to their disclosure, Sajjad Hussain appellant led to the recovery of pistol 30-caliber (P-4) along with six live bullets (P-5/1-6) followed by Sabir Hussein appellant, who got recovered 12-caliber gun (P-6), secured vide inventory. After completion of investigation, the appellants were sent to face trial before a learned Addl. Sessions Judge at Mzaffargarh; indicted on 24.11.2009, they claimed trial, pursuant whereto, prosecution produced as many as nine witnesses besides placing reliance upon forensic reports; the fate of prosecution case is hinged upon statements of Muhammad Anwar (PW-2) and Muhammad Saleem (PW-3), they constitute the mainstay of the prosecution case. According to forensic report, earth secured from the spot was found stained with blood of human origin. Report of Forensic Science Laboratory (Ex.PQ) is in the positive. The appellants confronted the prosecution evidence with the following unanimous plea:- "I am resident of Basti Kalar Mauza Wan Pitafi, which is 3/4 kilometer away from the alleged place of occurrence. There is no eye witness of the occurrence. Just after the occurrence the local police, SDPO and DPO Muzaffargarh reached at the place of occurrence. The DPO Muzaffargarh in his supervision followed the foot prints and on the night of occurrence Haqnawaz, Ghulam Sarwar, Mana, Nasir Shah and Squad Hussain were arrested whereas I was arrested at 4 am at bus stop Gowader chowk. Both the PWs Muhammad Anwar and Muhammad Saleem deposed during tile evidence that Muhammad Aslam deceased sustained two fire shots one in abdomen while second on right side under the shoulder whereas, the Doctor Amir Bakhsh observed four injuries on head, abdomen, on middle and right side of chest. Injury No.1 is with sharp edge weapon. There is contradiction between ocular and medical account which shows that none of the eye witness was present at the time of occurrence. According to evidence on record the alleged place of occurrence is situated in three different Mauzas i.e. Shah Muhammad Janubi, Shah Muhammac Janubi, Shah Muhammad Qui-eshi and parmay wala. During investigation the I.O. planted fake recovery of 12 bore gun upon me and prepared fictitious recovery memo. The weapon of offence is neither in the Malkhana nor has been produced in the court, nor was sent to FSL. The I.O. with the collusion of Haqnawaz etc got them released and I was involved in this blind murder and made an scapegoat". The learned Additional Sessions Judge at Muzaffargarh vide judgment dated 26-01-2011 convicted the appellants under Sections 302 (b), 392 read with Section 511 of the Pakistan Penal Code, 1860 and sentenced them to death along with payment of compensation in the sum of Rs.100,000/- each or six months S.I. in the event of its default as well as one and half years RI with fine Df Rs.5,000/- each or one month SI in default of payment thereof with benefit of Section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being challenged by the appellants vide Crl. Appeal No.642-J of 2011; Murder Reference No.10 of 2011 seeks confirmation of death penalty; these are being decided through this single judgment.

2. Learned counsel for the appellants contends that the case of the prosecution is fraught with contradictions, inconsistencies and improbabilities and as such the learned Court below erred in placing implicit reliance thereon in a case involving capital charge; that presence of the witnesses at the spot at the relevant point of time is extremely improbable; that ocular account is contradicted by medical evidence inasmuch as the witnesses failed to explain the presence of injury caused by sharp edged weapon on the head of the deceased; that witnesses are chance witnesses. Bottom line of the arguments is that prosecution case is not free from doubts and the learned trial Judge failed to extend benefit thereof to the appellants. Contrarily, the learned Law Officer assisted by learned counsel the complainant has defended the impugned judgment on the ground that the prosecution had been able to bring home charge against the appellants beyond a shadow of doubt. It has further been argued that as it is a case of highway robbery, penalty of death is to be more appropriately exacted from the appellants.

3. Heard. Record perused.

4. Ocular account furnished by Muhammad Anwar (PW-2) and Muhammad Saleem (PW-3) contains graphic details of the occurrence; the former though related as a brother, nonetheless, is having no grudge or animus against the appellants; he claims to have previous acquaintance with them, a position not very seriously contested by the defence; although his residence is situated at some distance from the crime scene, however, he satisfactorily explained his presence in response to defence owns queries, reproduced for the convenience of reference:-- "I, Abdul Ghaffar and Muhammad Saleem PWs gathered as Godar Chowk on the day of occurrence at 7:30 p.m. when we were about to proceed back to our houses. The distance between Gowdar Chowk and place of occurrence is about 3-kilometers." Muhammad Saleem (PW-3) verified the stance taken by the former in the following terms:- "I have no relationship with Aslam deceased. I and Abdul Ghaffar PW had gone to meet our friends at Basti Gehniwala on the night of occurrence. We reached at Godar Chowk at 7:30 p.m. We left the said Chowk at about 7:50 p.m." The above narratives by both the eye witnesses are in a comfortable unison and as such they cannot be discredited merely because one of them is related to the deceased or that their residences did not situate close by the venue and as such the argument that both the eye witnesses were chance witnesses does not hold water in view of explanations furnished by them regarding their presence at the crime scene, solicited no other than, by the defence itself; cross-examination is continuity of prosecution evidence and consequences thereof cannot be escaped by visiting the explanation with denied suggestions. Even otherwise, no reason can be possibly attributed to the complainant or the witnesses to swap the real offenders through substitution; the sequential order in terms of time does not admit that hypothesis either. The occurrence took place at 8:00 p.m. while the complaint was recorded at 8:30 p.m. with inter se distance of 3-miles; postmortem examination was conducted at 11:30 p.m. the promptitude is remarkable and excludes possibility of deliberations or consultations and therefore hypothesis that the appellants have been roped in on the basis of guess-mark cannot be possibly entertained. The durations given in the autopsy report coincide with the time of occurrence mentioned in complaint Ex.PB and weapons recovered are consistent with the injuries described therein. Casings were dispatched on 26-5-2008 through Sajjad Hussain/C (PW-7) much earlier than appellants' arrest and were found wedded with pistol (P-4) and shotgun (P-6) and as such evidence of recovery is inexorably focused upon the culpability of the appellants. Omission by the witnesses to mention injury received by deceased on his head is hardly of any consequence, as the decease(' was on a motorbike and the appellants confronted him in close blank and in the face of resistance and struggle and his immediate fall after receipt of fatal shots, impact with any part of motorcycle or guns carried by the assailants could possibly bring about the injury and hypothesis is not imaginary for the reason that according to autopsy report, the injuries were surrounded by blackening and tattooing. suggestive of inter se close proximity. These pieces of evidence even on a most stringent scrutiny, exclude every hypothesis of appellant's innocence and thus the learned trial Judge rightly placed implicit reliance thereon. Consequently, Crl. Appeal No.542-J of 2011 fails. However, insofar as question of quantum of sentence to be exacted from the appellants is concerned, we have carefully examined the aspect of the prosecution case. No doubt, prosecution has been able to prove its case to the hilt beyond reasonable doubt and being a case of robbery on a highway, the learned Law Officer is seemingly within bounds to ask for confirmation of death penalty, nonetheless, while certainly loss of life suffered by the deceased cannot be possibly equated on a comparative retributive paradigm nor can he be blamed for being a contributory to his death for offering resistance, nevertheless, extinction of two human lives particularly when the appellants apparently never intended to murder the deceased, as according to prosecution itself, their primary aim was to snatch the motorbike and death occurred in the backdrop of a situation ignited all of a sudden by unexpected resistance and that bosh the injuries opined to have caused death collectively, alternate penalty of imprisonment for life for both the appellants would meet the ends of justice. Reliance is placed in the case of Ghulam Moiy-ud-Din alias Haji Babu v. The State (2014 SCMR 1034), relevant portion is advantageous .y reproduced below:- "Once the legislature had provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty was the normal penalty and should ordinarily be awarded. If the intent of the legislature was to take away the discretion of the court, then it would have omitted from S.302(b), P.P.C. the alternative sentence of life imprisonment. Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case." Regard for human life has all along been a judicial obsession. Even otherwise, the above circumstances cumulatively make out a case to visit the appellants with alternate of imprisonment for life. Reliance is placed in Muhammad Mumtaz Khan's case reported as 1999 SCMR 837 wherein it is held as under:- "Where more than one factors are found present, none in itself qualifying for any condonation but each carrying a degree of such cumulative circumstances of the case calling for a lesser punishment, can in appropriate cases, be resorted to". Consequently, the penalty of death is altered into imprisonment for life; conviction and sentences on allied charges are kept intact; sentences shall run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898; amount of compensation/fine and consequences in the event of default are kept intact. Murder Reference No.10 of 2011 is answered in the NEGATIVE and death sentence is NOT CONFIRMED. JK/S-62/L Order accordingly.