2010 PLP 1020 (MLD)

MANZOOR AHMAD MALIK, J.

This judgment shall dispose of Criminal Appeal No. 257-J/04 (Muhammad Aslam v. The State) and Murder Reference No.879/04 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as both these matters arise out of the same judgment, dated 31-7-2004 passed by the learned Additional Sessions Judge, Gujranwala, whereby, appellant was convicted for the murder of his real father Allah Ditta under section 302(b), P.P.C. and sentenced to death as Tazir with a further direction to pay a compensation of Rs.50,000 as provided under section 544-A, Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo S.I. for six months.

2. Brief facts of the case, as given by P.W.8 Mst. Aasia Bibi (complainant) in the F.I.R. Exh. PG/1) are that on 25-12-2003 at about 1-00 a.m. (night) she was sleeping in her house along with her children while her father-in-law, namely, Malik Allah Ditta (deceased) was also sleeping in the adjacent Veranda of the house. According to the complainant, on a knock at the outer door, her father-in-law asked as to who was there, upon which, Muhammad Aslam (appellant) replied that he was on the door whereafter the door was opened by her father-in-law. It has been mentioned by the complainant in the F.I.R. that in the meanwhile, she also woke up. It has further been mentioned in the F.I.R. that as soon as Muhammad Aslam (appellant) entered the house, he started beating her father-in-law with a "danda" upon which they raised hue and cry. The complainant also stated in the F.I.R. that she informed her neighbourer Malik Iqbal through the ventilator regarding giving merciless beating by Muhammad Aslam (appellant) to her father-in-law and requested him to inform her nephews Abu Safian and Muhammad Ammar who both reached there after a while and rescued her father-in-law Allah Ditta. As per F.I.R., the complainant also alleged that she, along with others, shifted her father-in-law Allah Ditta to the Civil Hospital Gujranwala but he died there at about 3-30 a.m. As per F.I.R., Abu Safian and Ammar witnessed the occurrence. The motive stated in the F.I.R. was that Muhammad Aslam (appellant) had divorced his wife about eight years go and was wandering here and there, her father-in-law had been asking him to mend his ways but he used to quarrel with the deceased as the appellant wanted to contract a second marriage.

3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant as required under section 265-C, Code of Criminal Procedure, charge was framed to which he pleaded not guilty and claimed trial.

4. In order to prove its case, prosecution produced as many as 11 witnesses during the trial. The appellant was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. The learned Special Prosecutor gave up Muhammad Azam and Muhammad Ammar P.Ws. as being unnecessary, tendered in evidence reports of the Chemical Examiner (Exh.PN) and of Serologist (Exh.PP) and closed the prosecution evidence.

5. Learned counsel for the appellant contends that there is a delay of three/four hours in registration of the case; that there are material contradictions between the F.I.R. and the statement made by P.W.8 Mst. Aasia Bibi (complainant) before the Court; that no ventilator was shown in the Site Plan from where the complainant allegedly claimed to have called his neighbourers; that the other two eye-witnesses are not residents of the place where the occurrence took place, therefore, their presence at the place of occurrence at the time of occurrence was highly improbable; that the recovery of "danda" was not blood-stained though there are thirteen injuries on the person of the deceased and that the appellant is entitled to acquittal. Learned counsel lastly contends that if this court is not convinced with the argument of acquittal of the appellant then it is not a case of capital sentence because the motive is not proved and nobody knows as to what exactly happened between the deceased and the appellant prior to the occurrence especially when it took place during the dark hours of the night.

6. Conversely, the learned Additional Prosecutor-General for the State, while vehemently opposing this appeal, contends that the appellant has killed his own father, therefore, no question of lienency arises; that the presence of P.W.B. Mst. Aasia Bibi (complainant) is admitted at the spot being inmate of the same house where the occurrence took place; that the recovery of "danda" has been effected from the appellant; that the appellant is named in the F.I.R. with a specific role; that the natural eye-witness account was furnished by the P.Ws. and despite cross-examination the defence could shake nothing from their testimony; that the P.Ws. had no enmity with the appellant to falsely depose against him during the trial; that, even otherwise, in such-like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the conviction and sentence awarded to the appellant by the learned trial Court be maintained.

7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.

8. Occurrence in this case took place on 1-00 a.m. (night) on 25-12-2003, the matter was reported to the police by P.W.8 Mst. Aasia Bibi (complainant) at 4-30 a.m. at Sialkot bye-pass, the formal F.I.R. was registered on the same day at about 4.35 a.m. while the distance between the place of occurrence and the Police Station was about eight kilometers.

9. The prosecution in order to prove its case produced P.W.B. Mst. Aasia Bibi (complainant) as an eye-witness of the occurrence. Although she is closely related to the deceased "Bahau" yet she has no enmity or strong motive to falsely implicate the appellant in this case. Substitution in such-like cases is a rare phenomenon. She has reasonably explained her presence at the place of occurrence and we see no reason not to accept her statement. Even her presence at the spot is not disputed by the defence as she was resident of the same house in which the occurrence took place. She has reiterated the story given in the F.I.R. Notwithstanding the fact that she was subjected to cross-examination but nothing could be shaken from her testimony.

10. There is yet another eye-witness of case, namely, P.W.9 is Abu Safian who appeared before the learned trial Court in support of the prosecution case. He also remained consistent on all material particulars/of the case and the defence could shake nothing from his testimony despite his cross-examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main points. Although he is also related to the complainant and the deceased yet he has no enmity with the appellant to falsely depose against him. He has also reasonably proved his presence at the spot to have witnessed the occurrence as he hails from the same vicinity where the occurrence took place. This Court seems his testimony to be worthy of credence.

11. Apart from above, the ocular account in this case is supported by the medical evidence furnished by P.W.5. Dr. Salman Raheem who conducted postmortem examination on the body of deceased and noted thirteen injuries on the person of the deceased. The time of occurrence given in the F.I.R., time of death and duration of mentioned by the doctor, who conducted the postmortem examination, coincide with each other.

12. So far as recovery aspect of the case is concerned, "danda" (P.5.) was recovered at the instance of the appellant by Rohail Azeem S.-I. (P.W.11.) which was taken into possession vide recovery Memo. Exh. P. F. It was taken into possession on the same day of occurrence. The allegation was that the appellant caused thirteen injuries on the person of the deceased 'with the said "danda" but there is nothing on record whether it was blood-stained, so, the said recovery is of no avail to the prosecution. If recovery of "danda" is excluded from prosecution evidence, even then there is sufficient material on the record against the appellant.

13. In the afore-referred circumstances, this Court is of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt, therefore, conviction of the appellant under section 302(b), P.P.C. is hereby maintained.

14. However, we have noted that it is not a case of capital sentence and there are extenuating circumstances for awarding lesser sentence. P.W.8. Mst. Aasia Bibi (complainant), while giving motive part of the case, has stated in the F.I.R. that Aslam (appellant) had divorced her wife about eight years ago and was wandering here and there and her father-in-law (deceased) had been asking him to mend his ways but he used to quarrel with the deceased as the appellant wanted to contract a second marriage. At the fateful time, the door was knocked by the appellant and when the deceased opened the door, the appellant started giving beating to him with a "danda". However, while appearing before the Court, she has stated that when the deceased opened the door, the appellant asked him to provide a bed through her but the deceased asked him as to why he had come in the house at odd hours of the night. Therefore, in our view the prosecution has failed to prove motive part and it appears that the occurrence took place at the spur of the moment and something had happened at the spot between the son (appellant) and the father (deceased) which prompted the appellant to cause injuries on the person of the deceased with an ordinary "danda" coupled with the fact that it was not a pre-mediated attack. In this regard reliance is placed on Iftikhar ul Hassan v. Israr Bashir and another (PLD 2007 SC 111), wherein, at page 119 of the judgment, the learned apex Court has been pleased to hold as under:-- "....The difference of punishment for Qatl-e-Amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-Amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abbas Salam v. State (2000 SCMR 338)". To fortify our view, qua mitigation in case where motive alleged but not proved and immediate cause of incident being shrouded in mystery, reliance is made to the case of Muhammad Ayyaz Khan v. Murtaza and other 2008 SCMR 984, wherein, at page 373, the august Supreme Court was pleased to observe as under:-- "??..The High Court having considered the circumstances leading to the occurrence modified the sentence with the consideration that motive set up by the prosecution was not proved and the immediate cause of the occurrence was also not unfolded. This is correct that motive is not always an essential element of murder and weakness or absence of motive by itself may not be a valid reason for lesser punishment but in the present case, the prosecution has not been able to bring on record the material facts relating to the manner of taking place the occurrence and the immediate cause of occurrence, therefore, apart from the motive, the mystery in the circumstances leading to the occurrence would create sufficient mitigation in favour of the accused for lesser punishment". In Noor Muhammad v. The State and another (2010 SCMR 97), at page 101, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- "??.Thus the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCMR 214) that when motive is alleged that not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCMR 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State (PLD 1976 SC 929), it has been held that where motive is an important constituent and is found by the court to be untrue, the court should be on guard to accept prosecution story". The question of mitigation on account of non-existence of pre-meditation came up for consideration before the august Supreme Court of Pakistan in the case of Muhammad Ibrar v. The State (2006 SCMR 1175), wherein, at page 1179, the apex Court of Pakistan observed as under: "??.? the main reason which weighed with the learned High Court for reduction in sentence of petitioner was that it was not a pre-meditated incident and that it took place at the door of petitioner. Impugned judgment is based on proper appraisal of evidence and does not require interference."

15. In view of the above discussion, the sentence of death of the appellant is converted into imprisonment for life. The amount of compensation as ordered by the learned trial Court and the imprisonment in default thereof, shall remain intact. Benefit of section 382-B, Cr.P.C. shall be extended to the appellant. This appeal is partly allowed with the above modification in the quantum of sentence.??????????? Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED. H.B.T./M-305/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.