2018 PLP 685 (YLR)

RAJA SAEED AKRAM KHAN, J.

The captioned appeal has been addressed against the judgment of the Shariat Court dated 15.06.2012, whereby the appeal filed by the convict-appellant has been dismissed, whereas, the reference for confirmation of death sentence has been answered in affirmative.

2. Facts forming the background of the instant appeal are that Ghulam Hussain, complainant, filed a written report at Police Station, Pallandri on 02.01.2001, at 8:30 pm, that in the light of family partition of property, his brother, Karamat Hussain, possesses and resides at a separate piece of land. A throughfare passes through his land which leads towards a water spring. Three days prior to the occurrence, the complainant's bulls while going towards water spring entered into the wheat field of Karamat Hussain, whereupon he hurled abuses and became animus. Today, at 4:30 pm, the complainant's son, Maqsood Hussain, took his bulls to the water spring and when he was coming back while passing through the land of Karamat Hussain, he fired shots of 12-bore gun at him with the intention to kill him which did not hit him; he fled away. On this, Karamat Hussain threw away 12-bore gun and took up a 12- bore Carbine and started chasing his son, Muhammad Maqsood. Karamat Hussain fired a shot of Carbine with the intention to kill Muhammad Maqsood, which hit him at his chest on left side of belly, near navel and on left arm. Due to which, Muhammad Maqsood (deceased), fell down and succumbed to the injuries. The occurrence was witnessed besides complainant, by Muhammad Ishaq, Muhammad Afzal and Muhammad Rasheed.

3. On the report of complainant, a case under section 302, APC was registered against the convict-appellant: He was arrested by the police. After completion of investigation, the challan was presented in the District Court of Criminal Jurisdiction, Pallandri. On completion of the trial, the trial Court vide judgment dated 31.03.2004 awarded death sentence to the convict-appellant under section 302(b), APC. Feeling aggrieved, the convict-appellant filed an appeal before the Shariat Court for acquittal, whereas, the trial Court also sent a reference to the Shariat Court for confirmation of death sentence awarded to the convict-appellant. The learned Shariat Court vide impugned judgment dated 15.06.2012 dismissed the appeal filed by the convict-appellant, whereas, the murder reference submitted by the District Court of Criminal Jurisdiction, Pallandri was answered in affirmative. Hence, the instant appeal by the convict-appellant.

4. Barrister Hamyun Nawaz Khan, Advocate, the learned counsel for the convict-appellant argued that the judgments of the Courts below are based on misreading and non-reading of evidence. Both the Courts below failed to appreciate the evidence brought on record in a legal manner. He contended that the ocular account is not corroborated by the medical evidence which creates a serious doubt in the prosecution story. In this scenario, the trial Court was not justified to award the death sentence to the convict-appellant and the learned Shariat Court has wrongly maintained the same. He strongly argued that the story established by the prosecution is that during the course of occurrence, the convict-appellant made two shots of 12-bore gun and one shot by a carbine, but no such cartridges/empties have been recovered. Moreover, it has been stated that the injuries inflicted to the deceased at a distance of 50 feet, but in support of this version no report of firearm expert has been brought on record. In absence of that, this part of the prosecution story is unbelievable. He further contended that according to the prosecution story two shots were made with 12-bore gun which missed the target. The deceased fled away, whereupon, the convict-appellant took up a carbine and fired a shot which hit the chest of the deceased, but no plausible explanation came on the record that from where the convict-appellant took up the carbine. This part of the prosecution story makes the case highly doubtful as the prosecution failed to bring on record un-rebutted evidence in support of its version. While attacking upon the other parts of prosecution evidence, he submitted that there are serious contradictions in the statements of the prosecution witnesses (PWs) which cannot be ignored lightly, He added that the complainant of the case is the real father of the deceased, but he was not produced as a witness for a long time till his death. He submitted that site-plan itself negates the version of the prosecution as in the site-plan the presence of the witnesses has not been shown. He further submitted that the recovery of crime weapon is planted one as no independent witness has been cited as recovery witness. In this way, the recovery has been made while violating the provisions of Article 103 of the Qanun-e-Shahadat Order, 1984, meaning thereby, the prosecution withheld the best evidence and under law the Courts below have to draw the adverse inference under Article 129 of the Qanun-e-Shahadat Order, 1984 but all these aspects of the case escaped the notice of the Courts below. He lastly submitted that the convict-appellant may be acquitted of the charge; otherwise lesser sentence may be awarded to him.

5. On the other hand, Sardar Mushtaq Hussain, Advocate, the learned counsel for the complainant-respondent has strongly opposed the arguments advanced by the learned counsel for the convict-appellant. He contended that both the Courts below have appreciated the evidence brought on record in a legal manner and rightly came to the conclusion that the case against the convict-appellant has been proved beyond reasonable doubt. He added that the contradictions in evidence pointed out by the learned counsel for the convict-appellant are minor in nature which cannot be made a hurdle in the way of awarding the capital punishment. He further contended that all the PWs remained consistent on the material facts as their statements are in line with each other and they have fully supported the prosecution version. Nothing has come on record, that the PWs have falsely implicated the convict-appellant due to enmity. He maintained that the ocular account is fully corroborated by the medical evidence as the seats of injuries are the same as narrated in the FIR. He contended that the presence of the eye-witnesses has been fully proved, even otherwise, the site-plan is not a substantive piece of evidence and the same can be ignored in presence of direct evidence. He strongly argued that it is a broad daylight occurrence in which the FIR was promptly lodged; therefore, the question of identification or false implication of the convict-appellant does not arise. He submitted that motive established by the prosecution has been fully proved, all the witnesses are natural and trustworthy and the defence failed to create any dent in the prosecution story. In this way, the Courts below rightly believed the prosecution story. However, the learned counsel for the complainant failed to satisfy the Court regarding use of two types of weapons and the injuries which have been stated to be inflicted at a distance of 50 feet by using carbine gun. He also failed to furnish any sort of explanation regarding the non-recovery of cartridges/empties.

6. Ch. Shaukat Aziz, the learned Additional Advocate-General has also adopted the arguments advanced by the learned counsel for complainant. He submitted that it is a case in which the convict-appellant was nominated as a single accused and in such like cases the substitution is rare phenomenon.

7. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment, with utmost care. According to the prosecution story, the occurrence took place on 02.01.2004, at 4:30 pm, and the FIR was registered on the same day at 8:30 pm. The convict-appellant was duly nominated in the FIR. In the month of January, the sunsets at about 5:00 pm, in this way, it can safely be observed that at the time of occurrence, i.e., 4:30 pm, the sufficient sun light was available. The role assigned to the convict-appellant is that at the time of occurrence, he fired two shots of 12-bore gun at the deceased which did not hit him as he fled away. On this, the convict-appellant took up 12-bore Carbine and while chasing the deceased fired a shot which hit him at his chest, in the result of which, he succumbed to the injuries. In the light of the story established by the prosecution, we have gone through the evidence brought on record.

8. The motive established by the prosecution is that three days prior to the occurrence, the complainant's bulls while going towards water spring entered into the wheat fields of the convict-appellants upon which he hurled abuses and became animus. No other motive has come on the record and all the PWs remained consistent on the point of motive established by the prosecution and made the statements in line with each other. In this way, the motive part of the prosecution story rightly believed by the Courts below. The learned counsel for the convict-appellant while arguing the case has fairly stated at bar that he has no objection regarding the reports, i.e., medical, postmortem, chemical examiner, etc, therefore, there is no need to dilate upon this part of the prosecution evidence.

9. While adverting to the argument of the learned counsel for the convict-appellant that there are serious contradictions in the statements of the PWs which cannot be ignored lightly, we have gone through the statements of the eye-witnesses. Eye-witness, Muhammad Afzal stated in his statement that:-- Muhammad Ishaq, witness, stated that: Muhammad Rasheed, witness, stated as under: After going through the statements of the aforementioned eye-witnesses, it appears that they remained consistent and made their statements in line with each other. In spite of lengthy cross-examination, the defence failed to shake the confidence of the witnesses. In this state of affairs, both the Courts have rightly believed the same. The witnesses were residents of the area where the occurrence took place, therefore, their presence at the time of occurrence seems to be natural. Moreover, it is now settled that testimony of the witnesses cannot be discarded merely on the ground of relationship. The argument of the learned counsel for the convict-appellant in this regard has no substance. Reliance can be placed on a case reported as Irfan Hussain v. Allah Din and others [2014 PCr.LJ 312], wherein it has been held that: "From the Survey of case law, it appears that "mere relationship is no ground for discarding the evidence of witnesses. It may be observed that a party may rope innocent persons in a crime along with a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent person."

10. The learned counsel for the convict-appellant argued that the recovery of crime weapon is planted one as no independent witness has been cited as recovery witness. Moreover, the complainant of the case was the real father of the deceased, but he was not produced as a witness for a long time till his death. While appreciating this argument of the learned counsel for the convict-appellant, we have examined the record. Although, 14 witnesses were cited in the calendar of witnesses, however 12 were examined and one could not be examined due to his death and the remaining other one was abandoned. There is plethora of judgments of this Court that it is not necessary for the prosecution to examine each and every witness cited in the calendar of witnesses. It is sweet-will of the prosecution to examine the witnesses of his own choice. Moreover, as we have observed in the preceding paragraph that it is also well settled principle of law that the testimony of the witnesses cannot be discarded merely on the ground of relationship until and unless some ill-will or enmity comes on record, therefore, the argument of the learned counsel in this regard has no substance. Even otherwise, the recovery is a corroborative piece of evidence and if any discrepancy is made out in this regard that cannot be given preference over the ocular account which is otherwise confidence inspiring and believed by the Courts below. In a case titled Muhammad Shabir v. Ch. Muhammad Rashid and others (Criminal Appeal No.14 of 2013, decided on 20.02.2014) this Court while dealing with the proposition observed as under:- "

13. The argument of the learned counsel regarding recovery of weapon of offence is also immaterial as the recovery evidence also is of corroborative nature, therefore, much importance cannot be given to the recovery in presence of the other overwhelming evidence."

11. While adverting to the argument of the learned counsel for the convict-appellant that the site-plan itself negates the prosecution version as in the site-plan the presence of the witnesses has not been shown, it may be observed here that the site-plan is not a substantive piece of evidence and cannot be used to contradict or discard the unchallenged ocular testimony. The only purpose to prepare the same is to appreciate or explain the evidence on the record and cannot be given preference over direct evidence of credible eye-witnesses. In a recent judgment titled Karim Dad Khan and others v. Javed and others (Criminal Appeal No.25 of 2011, decided on 23.02.2015) this Court observed as under:-- "The argument of the learned counsel for the convict-appellants that the site shown in the site-plan is not the same where actually the occurrence took place and this fact creates doubt in the prosecution, is not convincing in nature. When the direct evidence is available and believed then the other evidence loses its evidentiary value as the same is only corroborative in nature. This Court has already held in a number of cases that the site-plan is not substantive piece of evidence and in presence of direct evidence the same can be ignored."

12. To appreciate the argument of the learned counsel for the convict-appellant that according to the prosecution story during the course of occurrence two types of weapons, were used but no such cartridges/empties have been recovered. Moreover, it has been stated that the injuries were inflicted to the deceased from a distance of 50 feet by the carbine gun, but no opinion from the firearm expert has been sought to prove the version, therefore, the whole story is doubtful, we have gone through the record. It is apparent from the record that the injuries were caused to the deceased from a distance of 50 feet by carbine gun, in our estimation, such position was required to be clarified by some arms expert, but no opinion in this regard has been obtained. It appears that the prosecution has not made serious efforts to bring on record any sort of evidence in this regard. The perusal of record also shows that no explanation regarding the use of two types of weapons has come on record. Why the convict-appellant used the carbine when he had made first two shots from 12-bore gun; whether the 12-bore gun had become out of order or any other reason forced the convict to use carbine instead of 12-bore gun. Moreover, it is also not on record that from where the convict-appellant took up the carbine; whether he took up the same from his house or the same was already lying with him at the time of occurrence; All these questions remained un-answered.

13. As we have observed in the preceding paragraph, that no plausible explanation has been brought on record regarding the use of two types of weapons, even the learned counsel for the complainant during the course of arguments, failed to satisfy the Court in this regard, therefore, this part of the prosecution story is shrouded in mystery. In this scenario, we are of the view that the defence has succeeded in pointing out a major flaw in the prosecution case, however, it may be observed here that on the basis of it, the whole case of the prosecution cannot be destroyed, and it can only be treated as a mitigation. The argument of the learned counsel for the convict-appellant that death penalty does not meet the ends of justice rather the case of convict-appellant is of lesser punishment in our view has some force. The mitigation is a fact which goes in favour of the convict-appellant and it is recognized phenomena of law that every benefit which arises in favour the accused must be extended to him.

14. After evaluating the evidence available on record, we are of the view that except the aforementioned mitigation the defence failed to create any serious dent in the prosecution story. However, it may be observed here that in presence of the mitigation pointed out in the preceding paragraph, it is not safe to award the death sentence to the convict-appellant rather the life imprisonment which is also a legal and normal punishment provided by law, is sufficient to award to the convict to meet the ends of justice. In a recent judgment titled Karim Dad Khan and others v. Javed and others (Criminal Appeal No.25 of 2011 decided on 23.02.2015), this Court while relying on different case law observed as under:- "

15. Keeping in view the overall circumstances of the case, we are of the view that it is a case of direct evidence and the prosecution has proved that the occurrence took place in the manners as narrated in the FIR. The reasons assigned by the learned Shariat Court while converting the sentence of death into life imprisonment, seems to be reasonable and convincing in nature and we are also of the view that it would not be in the interest of justice to convert the life imprisonment which otherwise is a legal sentence into death," Similarly, this Court in a case reported as Ansar Mehmood and another v. Manazir Hussain and others [2014 SCR 770], has observed that:

14. The perusal of the judgment of learned Shariat Court reveals that in the opinion of Shariat Court, only the death sentence is a normal penalty. But in our opinion, in view of clear statutory provision the punishment of death or life imprisonment as 'Ta'zir' are alternate sentences, hence, both can be treated as normal sentences. Our this view finds support from the latest judgment of the apex Court of Pakistan handed down in the case reported as Hassan and others v. The State and others [PLD 2013 SC 793]. It will be useful to reproduce here the relevant portion of the judgment which speaks as under:-- '

23. Upon the strength of the provisions of subsection (5) of section 367, Cr.P.C., it has been maintained before us that the normal sentence for an offence of murder is death and while considering a prayer for reduction of a sentence of death passed against a convict this Court may remain mindful of that statutory stipulation. We have found such a submission to be suffering from multiple misconceptions. Sub- section (5) of section 367, Cr.P.C. provides as follows: '(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, then the Court shall in its judgment state the reason why sentence of death was not passed.' We have not been able to find anything in the said provision of law even hinting at the sentence of death being the normal sentence in such a case. Section 302(b), P.P.C. clearly provides for two alternative sentences, i.e. sentence of death or sentence of imprisonment for life for the offence of murder and it does not state that any one of those sentences is to be treated as the normal sentence. As a matter of fact section 302 (b), P.P.C., itself mentions that any one of the two alternative sentences provided for therein is to be passed "having regard to the facts and circumstances of the case". There are cases wherein "the facts and circumstances of the case" do not warrant a sentence of death and what is required by subsection (5) of section 367, Cr.P.C. is that such facts and circumstances of the case ought to be mentioned by the trial Court in its judgment so that the higher Courts may straightaway become aware of the same while entertaining or deciding a challenge thrown against the trial Court's judgment. We believe that the general misunderstanding or misconception about the true import of the provisions of subsection (5) of section 367, Cr.P.C. entertained by the legal community, including the courts, in this regard needs to be removed and rectified. The other misconception about subsection (5) of section 367, Cr.P.C. is that it is considered to be applicable to the entire hierarchy of criminal Courts whereas that is not the case. Subsection (5) of section 367, Cr.P.C. is placed in Chapter XXVI of Part VI of the Code of Criminal Procedure, 1898 and Part VI of the Code pertains only to 'Proceedings in Prosecutions' before a trial court. The matters pertaining to the appellate and revisional courts and provided for in Part VII of the Code and that Part of the Code does not contain any provision akin or similar to that of subsection (5) of section 367, Cr.P.C. It is, thus, evident that the requirements of subsection (5) of section 367, Cr.P.C. are relevant only to trial Court and they have no application to an appellate or revisional Court. The provisions of section 423(i)(b), Cr.P.C. unambiguously show that it is well within the powers of an appellate court seized of an appeal against conviction to reduce the sentence of a convict and the requirement relevant to a trial court, as contained in subsection (5) of section 367, Cr.P.C., is not to be found in section 423(I)(b), Cr.P.C. The powers conferred upon a revisional Court under sections 435 and 439, Cr.P.C. also clearly demonstrate that while exercising revisional jurisdiction a sentence can be reduced and, again the requirement relevant to a trial court, as contained in subsection (5) of section 367, Cr.P.C., is not to be found in sections 435 and 439, Cr.P.C. it, therefore, goes without saying that when an appellate or revisional court .is considering a question of propriety or otherwise of a sentence passed against a convict the provisions of subsection (5) of section 367, Cr.P.C. cannot be pressed into service before it and any question of the sentence of death being the normal sentence is hardly relevant before the appellate and revisional courts.' Thus, in the light of the statutory provisions as well as principle of law enunciated by the apex Court of Pakistan, it can safely be concluded that in the punishment as "Ta'zir" for qatl-i-amd, the sentences of death and life imprisonment are alternative and both are normal sentences." In the light of what has been discussed above, while maintaining the conviction the death sentence is altered into life imprisonment. The benefit of section 382-B, Cr.P.C., shall remain available to the convict-appellant. With these observations this appeal stands disposed off. HBT/70/SC (AJ&K) Sentence reduced.