2008 PLP 859 (SCMR)

MUHAMMAD QAIM JAN KHAN, J.

This criminal appeal arises out of judgment of the Lahore High Court, Lahore, dated 5-11-2001 vide which the death sentence of the appellant has been confirmed and Murder Reference answered in the affirmative.

2. Brief facts of the case as reflected from the F.I.R. are that on 17-9-1998 at 4-30 p.m. Muhammad Akbar complainant reported to Nazeer Ahmad S.-I. P. W.14 that by profession he is a labourer on daily wages, today i.e. on 17-9-1998 at 2-00 p.m. his elder brother and sister, Muhammad Safdar and Mst. Nazeeran Bibi, respectively were going to Village Rao Khan Wala for the purchase of medicines, when the two reached near Chhoti Rohi Nala situated in the area of Village Rao Khan Wala, there accused Ahmad Nawaz son of Master Muzaffar Khan armed with .12 bore shot gun met them and stopped Muhammad Safdar. The accused told Muhammad Safdar that the residents of village Aurarra Kuhna had beaten him and he will take revenge, his sister Mst. Nazeeran Bibi P.W.12 requested the accused to desist but he aimed his gun at Muhammad Safdar and fired two shots successively which hit Muhammad Safdar on his left thigh and he fell down. On the hue and cry of Mst. Nazeeran Bibi P.W.12, complainant Muhammad Akbar P.W.11 and one Muhammad Anwar son of Ibrahim, who were going back to their village from Rao Khan Wala after making purchases, rushed to the spot and saw the occurrence. The complainant and his sister Mst. Nazeeran Bibi P.W.12 took the injured to Civil Hospital, Kasur but the injured was later on referred to General Hospital, Lahore, where he succumbed to the injuries and died. The accused Ahmad Nawaz was arrested after 23 days of the occurrence by the Investigating Officer and after completion of the investigation challan was submitted in the Court. The accused was brought before the Court and charged under sections 302/392, P.P.C. and 7(a) of the Anti-Terrorism Act, 1997, to which he pleaded not guilty and claimed trial. Trial commenced. In order to prove its case the prosecution produced almost 14 P.Ws. and closed its case. The accused was examined under section 342 of the Code of Criminal Procedure. He pleaded innocence and opted to produce evidence in defence but he did not. Consequently, after hearing the prosecution and the defence and appraisal of the evidence, the trial Judge convicted and sentenced the appellant as under:-- "10 years' R.I. with a fine of Rs.50,000 in default six months' R.I. under section 392, P.P.C. with the benefit of section 382-B, Cr.P.C. death under section 302(b), P.P.C. and death under section 7 of the Anti-Terrorism Act, 1997."

2. Aggrieved by the judgment of the trial Court, Ahmad Nawaz, convict/appellant preferred appeal before the Lahore High Court, and the trial Court sent Murder Reference for confirmation or otherwise of the death sentence and a learned Division Bench of it after hearing in detail the arguments of the learned counsel for the appellant and the State and going through the record, dismissed the appeal of the appellant, confirmed death sentence and answered the murder Reference in affirmative vide the impugned judgment, dated 5-11-2001.

3. Feeling dissatisfied, the appellant filed jail petition for leave to appeal before this Court, wherein leave was granted on 26-3-2003 to reappraise the evidence to ensure whether the principles of safe administration of criminal justice have been followed or not.

4. We have heard the learned counsel for the appellant and the learned Deputy Prosecutor-General at length and have perused the entire record of the case. In the instant case the statement of Mst. Nazeeran Bibi P.W.12, who is the eye-witness of the occurrence, has not been shattered by the defence although she was put to lengthy searching cross-examination. Her presence at the spot at the relevant time is proved beyond any doubt. The parties are known to each other. It is a daylight occurrence. The F.I.R. has been promptly lodged. Motive though not established, cannot mar the prosecution case in the attending circumstances. The statement of Mst. Nazeeran Bibi P.W.12 gets corroboration from the medical report, the recovery of empties, blood-stained earth recovered from the spot and also from the statement of Muhammad Akbar, complainant P.W.11 who is not an eye-witness but he reached the spot just after the occurrence. Similarly, the statement of Kaka Masih P. W.13 also lends some support to the prosecution case. The stance of the convict-appellant that he has been falsely charged at the behest of Rao Aamar Hayat and Rao Khizar Hayat ex-M.N.A., gets no support from the record. The ocular evidence, the medical evidence, the recoveries, statements of Muhammad Akbar P.W.11 and Kaka Masih P. W.13 have been elaborately met by the High Court, warranting no interference by this Court. It is an admitted fact that not only the presence of Mst. Nazeeran Bibi P. W.12 at the spot along with her deceased brother Muhammad Safdar is established beyond any reasonable doubt but also that she is an illiterate lady and cannot give minute details. Moreover, minor discrepancies cannot affect the prosecution case which is even otherwise proved beyond any shadow of doubt and in these circumstances, we while maintaining the conviction of the appellant are inclined to convert his death sentence into life imprisonment on the sole ground that at first, the appellant stopped the deceased and her sister and wanted to rob them but when deceased Muhammad Safdar offered resistance, he fired a shot. This factum has been clearly mentioned by Mst. Nazeeran Bibi P.W.12 while recording her statement in the trial Court. Therefore, the death sentence of the appellant is converted into life imprisonment on two counts which shall run concurrently. Rest of the sentences are maintained. Appeal is partly allowed in the above terms. N.H.Q./A-2/SC Sentence reduced.