2010 P Cr (PLP)

MANZOOR AHMAD MALIK, J.

Muhammad Iqbal appellant was tried by the learned Additional Sessions Judge, Lahore in case F.I.R. No.313/2001 dated 15-12-2001 offence under section 302, P.P.C. registered at Police Station Gowalmandi, Lahore who vide judgment dated 9-6-2004 convicted the appellant under section 302(b), P.P.C. and sentenced him to death as Ta'zir and further directed him to pay a compensation of Rs.50,000 (Rupees fifty thousand only) to the legal heirs of the deceased as provided under section 544-A, Code of Criminal Procedure in default whereof to further undergo simple imprisonment for six months.

2. Feeling aggrieved by the above-said conviction and sentence, appellant, Muhammad Iqbal filed Criminal Appeal No.401-J of 2006 whereas the learned trial Court has sent Murder Reference No.279 of 2004 for confirmation or otherwise of his death sentence. Both these matters are being disposed of by this single judgment.

3. Briefly, facts of the case as narrated by the complainant Muhammad Sultan (P. W. 3) in F.I.R. Exh. P. A/1, are the deceased Muhammad Latif was brother-in-law of the complainant who was working as a cook in Holiday Inn Hotel and was living in Room No.7 of Paris Hotel Railway Road, Lahore, on rent. Marriage of Muhammad Lateef deceased was going to be solemnized on 30th of December. At 8-00 p.m. on the fateful night, complainant, Jafar Hussain P.W. (given up) and Iftikhar Hussain (P.W.4) came to the room of deceased to see him as the deceased needed money for purchase of articles for his marriage and they paid Rs.48,000 to Muhammad Latif (deceased) which he kept in the brief-case. Muhammad Sultan complainant and P.Ws. also stayed there. Muhammad Iqbal (appellant) and Nasir Mahmood, who were working in the Holiday Inn and Ambassador Hotels were also staying there, Nasir Mahmood went on night duty and remaining all the above said persons slept in the room. At the time of Sehri all of them had Sehri. The deceased prepared himself for duty. Muhammad Iqbal (appellant) had altercation with him for getting his amount on which both exchanged hot words and in the sight of complainant and P.Ws. Muhammad Iqbal (appellant) pulled out pistol from his "Dab" and fired at Latif which hit on head, abdomen and left arm of the deceased who fell down and after a while succumbed to the injuries. It was stated in the F.I.R. that the complainant and P.Ws. tried to apprehend Muhammad Iqbal (appellant) who, on pistol point, by extending threats and taking with him his clothes and brief-case of the deceased, fled away from the spot. Motive behind the occurrence, as set out in the F.I.R, was that Muhammad Lateef deceased had borrowed some money from the appellant Muhammad Iqbal and on non-payment of the same appellant committed murder of the deceased.

4. After registration of the case, Nasrullah Khan Inspector (P.W.8) started investigation, visited the place of occurrence, inspected the spot, collected blood through cotton, three empties of .30 bore pistol, prepared rough site plan of place of occurrence, recorded the statements of P.Ws. under section 161, Code of Criminal Procedure and after completing the formalities submitted report under section 173, Code of Criminal Procedure.

5. Formal charge was framed against the (appellant) on 12-12-2002, to which he pleaded not guilty and claimed trial. In order to prove its case prosecution examined eight witnesses in all.

6. After conclusion of the trial, the learned trial Court convicted the appellant as stated above; hence, this appeal.

7. Learned counsel for the appellant, in support of this appeal contends that there is delay of 1-1/2 hours in the registration of the F.I.R. whereas the distance from the place of occurrence and the Police Station, as per F.I.R. is 1-1/2 furlongs; that both the eye-witnesses namely Muhammad Sultan (P.W.3) and Iftikhar Hussain (P.W.4) are chance witnesses and have not given any plausible explanation for their presence at the place of occurrence which is admittedly 30/32 kilometers from the place of their residence, therefore, their presence at the spot is not natural and even the reasons given by them for their presence at the spot are also different; that P.W.3 namely Muhammad Sultan stated that he had come from Bhai Pheru whereas Iftikhar Hussain (P.W.4) stated that he had come from Sheikhupura; that there are material contradictions in the statements of the witnesses; that Iftikhar Hussain P.W.4 stated that the appellant had thrown his pistol at the place of occurrence, however, according to Muhammad Sultan P.W.3 the appellant left the place of occurrence while carrying pistol in his hand whereas Nasrullah Khan Inspector (P.W.8) stated that he recovered the pistol from the possession of the appellant on 1-1-2002 at the time of his arrest and in these circumstances recovery of pistol and report of the Forensic Science Laboratory becomes doubtful and as such the appellant is entitled for acquittal. Learned counsel for the appellant lastly argued that it is not a case of capital punishment as the complainant namely Muhammad Sultan (P.W.3) had admitted in his cross-examination that altercation took place between the deceased and the appellant due to money dispute and they started abusing each other and in anger, the appellant pulled out the pistol and fired three shots upon the deceased, therefore, it was not a case of premeditation and does not warrant capital punishment.

8. On the other hand, learned Additional Prosecutor-General opposes this appeal on the ground that F.I.R. was promptly lodged and there is no delay in reporting the matter to the police; that the appellant is nominated in the F.I.R. with a specific role of firing three successive shots at the deceased; that both the eye-witnesses i.e. P.W.3 and P.W.4 have given plausible reasons for their presence at the spot which has not been disputed that the place of occurrence was room of a hotel and presence of the eye-witnesses is natural; that during the course of investigation belongings of the deceased were recovered from the possession of the appellant which includes some cards for marriage of the deceased; that weapon of offence was also recovered from the appellant whereas empties were recovered from the spot and the same were sent to the Forensic Science Laboratory and report of the Forensic Science Laboratory Exh.P.P. is positive. However, the learned Additional Prosecutor-General conceded that there are mitigating circumstances in this case as P.W.3 had admitted that the appellant in anger pulled out the pistol and fired at the deceased.

9. We have heard learned counsel for the appellant (appointed at the State expense) and the learned Additional Prosecutor-General for the State and have also gone through the record with their able assistance.

10. In this case the occurrence took place on 15-12-2001 at about 7-00 a.m. in the morning and the matter was reported by Muhammad Sultan (P.W.3) to the police and formal F.I.R. Exh.P.A./1 was recorded at 8-30 a.m. and there is no circumstances, wherefrom it could be inferred that it was a delayed F.I.R. as contended by learned counsel for the appellant.

11. Though the eye-witnesses were not residents of the place where the occurrence took place as place of occurrence was room of a hotel but both of them have given reasons for their presence at the place of occurrence and circumstances of the case suggest that reasons given by them are plausible as ultimately cards regarding marriage of the deceased were recovered from the brief case of the deceased which was recovered from the appellant at the time of his arrest on 1-1-2002, therefore, presence of the eye-witnesses at the place of occurrence is proved. Testimony of the eye-witnesses is supported by the medical evidence. Both the witnesses unanimously stated that the appellant made three fire shots at the deceased. According to Dr. Muhammad Nawaz, Demonstrator King Edward Medical College (P.W.6) upon examination of the dead-body of the deceased Muhammad Lateef following injuries were found on his person: 1-A A lacerated wound 0.7 x 0.7 cm inverted margin present on the left cheek 3 cm in front of left ear. 1-B A lacerated wound 7 x 3.5 cm brain matter was coming out of the wound present on the right temproparietal region 3 cm above the right ear. 2-A A lacerated wound 0.7 x 0.7 cm present on the anteroletral side of left arm inverted margin 13 cm above the left elbow. 2-B A lacerated wound 1 x 0.8 cm everted margin present on the front of left arm 9 cm above the elbow. 3-A A lacerated wound 2 x 1.5 cm present on the left ingurial region margin of the wounds were burnt the wound was present 13.5 cm below the umblicus at 5 O'clock position. 3-B A lacerated wound 1 x 0.8 cm everted margin present on the back of right side of abdomen 7.5 cm to the right of midline 2 cm above the illiac ceased. Moreover no enmity whatsoever has been suggested to the eye-witnesses as to why they were deposing falsely against the appellant.' Substitution of the accused in such like cases is a rare phenomenon.

12. The motive for the commission of the murder given at the very outset in the F.I.R. is that the deceased has to pay back certain amount of money, which he has taken as a loan from the appellant and that due to a dispute of the settlement of said amount the appellant has killed the deceased. Motive has not been challenged during the cross-examination on the prosecution witnesses. Rather it was suggested to P.W.3 (Muhammad Sultan) that the deceased was liable to pay Rs.52,000 (rupees fifty-two thousand) to the appellant.

13. As far as recovery of pistol from the appellant and empties from the place of occurrence coupled with the report of the Forensic Science Laboratory is concerned P.W.4 (Iftikhar Hussain) in his cross-examination has stated that the appellant threw the pistol at the spot and the Police took the same into possession from the place of occurrence. In such circumstances recovery of the weapon of offence becomes doubtful and no reliance can be placed on the report of the Forensic Science Laboratory. However, there is sufficient incriminating evidence available on the record to connect the appellant with the commission of offence as both the eye-witnesses are consistent on the point that it was the appellant who fired three shots at the deceased and their testimony finds support from the medical evidence available on the record and in the circumstances the conviction of appellant under section 302(b), P.P.C. is maintained.

14. As far as the sentence of the appellant is concerned, we have considered that Muhammad Sultan (P.W.3) in his cross-examination has stated as under:-- "On altercation between deceased and the accused they started abusing to each other and in anger the accused pulled out pistol and fired at the deceased. The deceased and the accused were fast friends and used to see each other's houses at their villages." It is the case of the prosecution that the appellant and deceased were fast friends and the appellant had not previous enmity and as such there was no premeditation on the part of the appellant to commit murder of the deceased. Therefore, this is a case of sudden fight as according to the motive set out in the F.I.R. the deceased owed certain amount to the appellant and the appellant committed the murder after an altercation in a heat of passion, therefore, in the circumstances punishment of death is not warranted.

15. For the foregoing, while dismissing the appeal we modify and alter the sentence of death into imprisonment for life. The appellant is, thus, sentenced to undergo imprisonment for life, however, the compensation awarded by the learned trial Court and sentence in default thereof is maintained. The appellant shall also be entitled to the benefit of section 382-B, Code of Criminal Procedure.

16. The death sentence is Not confirmed and Murder Reference No.279 of 2004 is answered in the negative. H.B.T./M-199/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.